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APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
SUBORDINATED DEBT SECURITIES
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INDENTURE
DATED AS OF __________
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UNITED STATES TRUST COMPANY OF NEW YORK,
TRUSTEE
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CROSS REFERENCE TABLE 1
TIA INDENTURE
SECTION SECTION
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310 (a)(1)............................................................7.8; 7.10
(a)(2)........................................................... 7.10
(a)(3).................................................................N.A.
(a)(4).................................................................N.A.
(a)(5).................................................................7.10
(b)...............................................................7.8; 7.10
(c).....................................................................N.A
311 (a)....................................................................7.11
(b)....................................................................7.11
(c)....................................................................N.A.
312 (a).....................................................................2.7
(b)....................................................................13.3
(c)....................................................................13.3
313 (a).................................................................... 7.6
(b).....................................................................7.6
(c)...............................................................7.6; 13.2
(d).....................................................................7.6
314 (a)...............................................................4.2; 13.2
(b)....................................................................N.A.
(c)(1).................................................................13.4
(c)(2).................................................................13.4
(c)(3).................................................................N.A.
(d).................................................................. N.A.
(e)................................................................... 13.5
(f)................................................................... 4.3
315 (a)................................................................... 7.1
(b)............................................................. 7.5; 13.2
(c).....................................................................7.1
(d).....................................................................7.1
(e)....................................................................6.11
316 (a)(1)(A)...............................................................6.5
(a)(1)(B)...............................................................6.4
(a)(2).................................................................N.A.
(b).....................................................................6.7
(c)....................................................................N.A.
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1 Note: This Cross Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
TIA INDENTURE
SECTION SECTION
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317 (a)(1)..................................................................6.8
(a)(2)..................................................................6.9
(b).....................................................................2.6
318 (a)....................................................................13.1
TABLE OF CONTENTS 2
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS................................................... 1
SECTION 1.2 OTHER DEFINITIONS............................................. 5
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT............. 6
SECTION 1.4 RULES OF CONSTRUCTION......................................... 6
ARTICLE II
THE SECURITIES
SECTION 2.1 FORMS GENERALLY............................................... 7
SECTION 2.2 SECURITIES IN GLOBAL FORM..................................... 7
SECTION 2.3 TITLE, TERMS AND DENOMINATIONS. .............................. 8
SECTION 2.4 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. .............. 11
SECTION 2.5 REGISTRAR AND PAYING AGENT. .................................. 13
SECTION 2.6 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST. .......... 14
SECTION 2.7 SECURITYHOLDER LISTS. ........................................ 14
SECTION 2.8 TRANSFER AND EXCHANGE..........................................15
SECTION 2.9 REPLACEMENT SECURITIES. ...................................... 17
SECTION 2.10 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS' ACTION..... 18
SECTION 2.11 TEMPORARY SECURITIES. ........................................ 19
SECTION 2.12 CANCELLATION. ................................................ 19
SECTION 2.13 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. .............. 20
SECTION 2.14 PERSONS DEEMED OWNERS......................................... 21
SECTION 2.15 COMPUTATION OF INTEREST. ..................................... 21
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT TO REDEEM; NOTICES TO TRUSTEE........................... 22
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED. ...................... 22
SECTION 3.3 NOTICE OF REDEMPTION. ........................................ 22
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Note: This Table of Contents shall not, for any reason, be deemed to be part of
the Indenture.
i
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION. .............................. 23
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE................................... 23
SECTION 3.6 SECURITIES REDEEMED IN PART................................... 24
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES......................................... 24
SECTION 4.2 SEC REPORTS................................................... 24
SECTION 4.3 COMPLIANCE CERTIFICATE........................................ 24
SECTION 4.4 FURTHER INSTRUMENTS AND ACTS. ................................ 25
SECTION 4.5 MAINTENANCE OF OFFICE OR AGENCY............................... 25
SECTION 4.6 LIMITATIONS ON THE INCURRENCE OF CERTAIN OTHER DEBT........... 25
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE OR TRANSFER ASSETS..................... 26
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT............................................. 26
SECTION 6.2 ACCELERATION. ................................................ 28
SECTION 6.3 OTHER REMEDIES. .............................................. 28
SECTION 6.4 WAIVER OF PAST DEFAULTS....................................... 29
SECTION 6.5 CONTROL BY MAJORITY........................................... 29
SECTION 6.6 LIMITATION ON SUITS........................................... 29
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.......................... 30
SECTION 6.8 COLLECTION SUIT BY TRUSTEE. .................................. 30
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM. ............................ 30
SECTION 6.10 PRIORITIES. .................................................. 31
SECTION 6.11 UNDERTAKING FOR COSTS......................................... 31
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS....................... 32
ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE............................................. 32
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PAGE
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SECTION 7.2 RIGHTS OF TRUSTEE............................................. 33
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE, ETC............................. 33
SECTION 7.4 TRUSTEE'S DISCLAIMER. ........................................ 34
SECTION 7.5 NOTICE OF DEFAULTS. .......................................... 34
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS................................. 34
SECTION 7.7 COMPENSATION AND INDEMNITY. .................................. 34
SECTION 7.8 REPLACEMENT OF TRUSTEE. ...................................... 35
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER................................... 37
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION................................. 37
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY............. 37
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 DISCHARGE OF LIABILITY ON SECURITIES. ........................ 37
SECTION 8.2 REPAYMENT TO THE COMPANY. .................................... 38
SECTION 8.3 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE. .......... 38
SECTION 8.4 DEFEASANCE AND DISCHARGE. .................................... 38
SECTION 8.5 COVENANT DEFEASANCE........................................... 38
SECTION 8.6 CONDITION TO DEFEASANCE OR COVENANT DEFEASANCE. .............. 39
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. .......... 39
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS............... 40
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT........................... 41
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS........ 41
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES......................... 42
SECTION 9.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES....................... 42
SECTION 9.7 EFFECT OF SUPPLEMENTAL INDENTURES............................. 42
ARTICLE X
SINKING FUNDS
SECTION 10.1 APPLICABILITY OF ARTICLE. .................................... 43
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SECTION 10.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES......... 43
SECTION 10.3 REDEMPTION OF SECURITIES FOR SINKING FUND..................... 43
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED..................... 44
SECTION 11.2 CALL, NOTICE AND PLACE OF MEETINGS. .......................... 44
SECTION 11.3 PERSONS ENTITLED TO VOTE AT MEETINGS. ........................ 44
SECTION 11.4 QUORUM; ACTION. .............................................. 45
SECTION 11.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS....................................... 45
SECTION 11.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS............... 46
SECTION 11.7 ACTIONS OF HOLDERS GENERALLY. ................................ 47
ARTICLE XII
SUBORDINATION
SECTION 12.1 SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS................. 48
SECTION 12.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. .............. 48
SECTION 12.3 ACCELERATION OF SECURITIES.................................... 50
SECTION 12.4 DEFAULT IN SENIOR INDEBTEDNESS................................ 51
SECTION 12.5 PAYMENT PERMITTED IF NO DEFAULT............................... 52
SECTION 12.6 SUBROGATION RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS. ........ 52
SECTION 12.7 PROVISION SOLELY TO DEFINE RELATIVE RIGHTS. .................. 52
SECTION 12.8 TRUSTEE TO EFFECTUATE SUBORDINATION. ......................... 53
SECTION 12.9 NO WAIVER OF SUBORDINATION PROVISIONS. ....................... 53
SECTION 12.10 NOTICE TO TRUSTEE............................................. 53
SECTION 12.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT............................................. 54
SECTION 12.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS...... 55
SECTION 12.13 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.............................. 55
SECTION 12.14 ARTICLE XII APPLICABLE TO PAYING AGENTS....................... 55
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 TRUST INDENTURE ACT CONTROLS.................................. 56
SECTION 13.2 NOTICES. ..................................................... 56
SECTION 13.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. ................. 57
SECTION 13.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT............ 57
SECTION 13.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. ............... 57
SECTION 13.6 SEPARABILITY CLAUSE. ......................................... 58
SECTION 13.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR.................. 58
SECTION 13.8 LEGAL HOLIDAYS................................................ 58
SECTION 13.9 GOVERNING LAW. ............................................... 58
SECTION 13.10 NO RECOURSE AGAINST OTHERS. .................................. 58
SECTION 13.11 SUCCESSORS. .................................................. 59
SECTION 13.12 EFFECT OF HEADINGS AND TABLE OF CONTENTS. .................... 59
SECTION 13.13 BENEFITS OF INDENTURE......................................... 59
SECTION 13.14 MULTIPLE ORIGINALS. .......................................... 60
v
INDENTURE dated as of ________, by and among Apartment Investment and
Management Company, a Maryland corporation ("COMPANY"), and United States
Trust Company of New York, as trustee ("TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES") to be issued in one or more series as in this Indenture provided.
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
ratable benefit of the Holders of the Securities or each series thereof as
follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"AFFILIATE" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"CONTROL" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"BOARD OF DIRECTORS" means either the board of directors of the Company or
any committee of such board authorized with respect to any matter to exercise
the powers of the Board of Directors of the Company.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" means, except as otherwise specified as contemplated by
Section 2.3(a), with respect to any Place of Payment or any other particular
location referred to in this Indenture or m the Securities, means each Monday,
Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in that
Place of Payment or other location are authorized or obligated by law or
executive order to close.
"CAPITAL STOCK" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that corporation.
"CASH" means such coin or currency of the United States as at any time of
payment is legal tender for the payment of public and private debts.
"COMPANY" means the party named as the "COMPANY" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company, by its Chairman of the Board, a Vice
Chairman, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee
or, with respect to Sections 2.4, 2.8, 2.11 and 7.2, any other employee of the
Company named in an Officers' Certificate delivered to the Trustee.
"DEBT" means with respect to any person at any date, without duplication
(i) all obligations of such person for borrowed money, (ii) all obligations of
such person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all Debt of others secured by a lien on any asset of such person, whether
or not such Debt is assumed by such person, (iv) all obligations of such person
pursuant to leases which are required to be capitalized under generally accepted
accounting principles consistently applied and (v) all Debt of others for the
payment of which such person is responsible or liable as obligor or guarantor.
"DEFAULT" means any event which 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 whole or in part in global form, the Person specified as
contemplated by Section 2.3(a) as the Depositary with respect to such series of
Securities, until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "DEPOSITARY" shall mean or include
such successor.
"DISCOUNT SECURITY" means any Security which provides for an amount less
than the Principal Amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.2.
2
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"HOLDER" or "SECURITYHOLDER," when used with respect to any Security, means
a person in whose name a Security is registered on the Registrar's books.
"INDENTURE" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof and shall include the terms of a
particular series of Securities established as contemplated in Section 2.3(a).
"INTEREST," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"INTEREST PAYMENT DATE," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"MATURITY," when used with respect to any Security, means the date on which
the Principal of such Security or an installment of Principal or, in the case of
a Discount Security, the Principal Amount payable upon a declaration of
acceleration pursuant to Section 6.2, becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"OFFICER" means the Chairman of the Board, any Vice Chairman, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a written certificate containing the
information specified in Sections 13.4 and 13.5, signed in the name of the
Company by its Chairman of the Board, a Vice Chairman, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion containing the information
specified in Sections 13.4 and 13.5, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company or the
Trustee.
"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, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as
3
contemplated by Section 2.3(a) with respect thereto, are to be determined by the
Company, or one or more of the Company's agents designated in an Officers'
Certificate, upon the issuance of such Securities.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT," when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 4.5, the
Principal of and any interest on the Securities of that series are payable as
specified as contemplated by Section 2.3(a).
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.9 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"PRINCIPAL" or "PRINCIPAL AMOUNT" of a Security, except as otherwise
specifically provided in this Indenture, means the outstanding principal of the
Security plus the premium, if any, of the Security.
"REDEMPTION DATE" or "REDEMPTION DATE," when used with respect to any
Security to be redeemed, shall mean the date specified for redemption of such
Security in accordance with the terms of such Security and this Indenture.
"REDEMPTION PRICE" or "REDEMPTION PRICE," when used with respect to any
Security to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 2.3(a).
"SEC" means the Securities and Exchange Commission.
"SECURITIES" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"SECURITYHOLDER" or "HOLDER," when used with respect to any Security, means
a person in whose name a Security is registered on the Registrar's books.
4
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Securities of any issue means a date fixed by the Trustee pursuant to Section
2.13.
"STATED MATURITY," when used with respect to any Security or any
installment of Principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which an amount equal to the Principal of
such Security or an installment of Principal thereof or interest there on is due
and payable.
"SUBSIDIARY" means, with respect to any person, a corporation of which a
majority of the Capital Stock having voting power under ordinary circumstances
to elect a majority of the board of directors of such corporation is owned by
(i) such person, (ii) such person and one or more Subsidiaries of such person or
(iii) one or more Subsidiaries of such person.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, except as provided in Section 9.3.
"TRUST OFFICER" means any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"TRUSTEE" means the party named as the "TRUSTEE" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"UNITED STATES" means the United States of America, its territories, its
possessions (including the Commonwealth of Puerto Rico), and other areas subject
to its jurisdiction.
SECTION 1.2 OTHER DEFINITIONS
Defined in
Term Section
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"BANKRUPTCY LAW" 6.1
"CUSTODIAN" 6.1
"DEFAULTED INTEREST" 2.13
"EVENT OF DEFAULT" 6.1
"EXCHANGE DATE" 2.11
"LEGAL HOLIDAY" 13.8
"NOTICE OF DEFAULT " 6.1
"OUTSTANDING" 2.10
"PAYING AGENT" 2.5
"REGISTRAR" 2.5
5
"SENIOR INDEBTEDNESS" 13.1
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Holder or Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.4 RULES OF CONSTRUCTION. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in the United
States as in effect from time to time;
(3) "OR" is not exclusive;
(4) "INCLUDING" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
6
ARTICLE II
THE SECURITIES
SECTION 2.1 FORMS GENERALLY. The Securities of each series shall be in
substantially such form (including global form) as shall be established by
delivery to the Trustee of an Officers' Certificate or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the Officers executing such Securities as evidenced by their
execution of the Securities. The Officers' Certificate so establishing the form
of Security of any series shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 2.4 for the authentication
and delivery of such Securities.
The permanent Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner, PROVIDED, that such method is permitted by the rules of any securities
exchange on which such Securities may be listed, all as determined by the
Officers executing such Securities as evidenced by their execution of such
Securities.
SECTION 2.2 SECURITIES IN GLOBAL FORM. If Securities of a series are
issuable in temporary or permanent global form, as specified as contemplated by
Section 2.3(a), then, notwithstanding clause (10) of Section 2.3(a) and the
provisions of Section 2.3(b), any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount
of any increase or decrease in the amount of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such person or persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 2.4 or Section 2.11. Subject
to the provisions of Section 2.4 and, if applicable, Section 2.11, the Trustee
shall deliver and redeliver any Security in global form in the manner and upon
instructions given by the person or persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 2.4 or 2.11
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 13.4 or 13.5 and need not
be accompanied by an Opinion of Counsel.
7
The provisions of the last sentence of Section 2.4 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company, and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 13.4 or 13.5 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the Principal Amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 2.4.
Notwithstanding the provisions of Sections 2.1 and 2.13, unless otherwise
specified as contemplated by Section 2.3(a), payment of Principal of and any
interest on any Security in global form shall be made to the person or persons
specified therein.
SECTION 2.3 TITLE, TERMS AND DENOMINATIONS
(a) The aggregate Principal Amount of Securities which may be authenticated
and delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established and, subject to Section 2.4, set forth, or determined in the manner
provided, in an Officers' Certificate of the Company, or established in one or
more indentures supplemental hereto:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate Principal Amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 2.8, 2.9, 2.11, 3.6, 9.5 or 10.3 and except for
any Securities which, pursuant to Section 2.4, are deemed never to have
been authenticated and delivered hereunder);
(3) whether any Securities of the series may be represented initially
by a Security in temporary or permanent global form and, if so, the initial
Depositary with respect to any such temporary or permanent global Security,
and if other than as provided in Section 2.8 or Section 2.11, as
applicable, whether and the circumstances under which beneficial owners of
interests in any such temporary or permanent global Security may exchange
such interests for Securities of such series and of like tenor of any
authorized form and denomination;
(4) the person to whom any interest on any Security of the series
shall be payable, if other than the person in whose name that Security (or
one or more
8
Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, and the extent to which, or the
manner in which (including any certification requirement and other terms
and conditions under which), any interest payable on a temporary or
permanent global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 2.2 and Section 2.4, as applicable;
(5) the date or dates on which the Principal of the Securities of the
series is payable or the method of determination thereof;
(6) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any
Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on Securities of the series shall be
payable, any Securities of the series may be surrendered for registration
of transfer, Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the Securities of
the series and this Indenture may be served;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, the conditions, if any,
giving rise to such obligation, and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities
of the series shall be redeemed or purchased, in whole or in part, and any
provisions for the remarketing of such Securities;
(10) the denominations in which any Securities of the series shall be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(11) if other than the Principal Amount thereof, the portion of the
Principal Amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.2;
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(12) if other than as defined in Section 1.1, the meaning of "BUSINESS
DAY" when used with respect to any Securities of the series;
(13) if and the terms and conditions upon which the Securities of the
series may or must be converted into securities of the Company or exchanged
for securities of the Company;
(14) any terms applicable to Original Issue Discount, if any (as that
term is defined in the Internal Revenue Code of 1986 and the Regulations
thereunder), including the rate or rates at which such Original Issue
Discount, if any, shall accrue;
(15) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of Principal of or any
interest is payable, only upon receipt of certain certificates or other
documents or satisfaction of other conditions in addition to those
specified in this Indenture, the form and terms of such certificates,
documents or conditions; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(7)).
All Securities of any one series shall be substantially identical except as
to denomination and the rate or rates of interest, if any, and Stated Maturity,
the date from which interest, if any, shall accrue and except as may otherwise
be provided in or pursuant to an Officers' Certificate pursuant to this Section
2.3(a) or in any indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series or
for the establishment of additional terms with respect to the Securities of such
series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of any appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series. With respect to Securities
of a series subject to a Periodic Offering, such Board Resolution or Officers'
Certificate may provide general terms for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company, or one or more of the Company's agents designated in an Officers'
Certificate, in accordance with the Company Order as contemplated by the first
proviso of the third paragraph of Section 2.4.
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(b) Unless otherwise provided as contemplated by Section 2.3(a) with
respect to any series of Securities, any Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 2.4 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Securities
shall be executed on behalf of the Company by its Chairman of the Board, one of
its Vice Chairmen, its President or one of its Vice Presidents, or the Treasurer
or any Assistant Treasurer, under its corporate seal reproduced thereon attested
by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities;
PROVIDED, HOWEVER, that, with respect to Securities of a series subject to a
Periodic Offering, (a) such Company Order may be delivered by the Company to the
Trustee prior to the delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
Principal Amount not exceeding the aggregate Principal Amount established for
such series, pursuant to a Company Order or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by a Company
Order, (c) the rate or rates of interest, if any, the Stated Maturity or
Maturities, the original issue date or dates, the redemption provisions, if any,
and any other terms of Securities of such series shall be determined by a
Company Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company, or the Company's
duly authorized agent or agents designated in an Officers' Certificate, which
oral instructions shall be promptly confirmed in writing.
If the forms or terms of the Securities of the series have been established
in or pursuant to one or more Officers' Certificates as permitted by Sections
2.1 and 2.3(a), in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.1) shall be
fully protected in relying upon, an Opinion of Counsel stating:
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(a) that the form and terms of such Securities have been duly authorized by
the Company and established in conformity with the provisions of this Indenture;
and
(b) that such Securities when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, subject
to customary exceptions;
PROVIDED, HOWEVER, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of such
Securities (when established in accordance with such procedures as may be
specified from time to time in a Company Order, all as contemplated by and
in accordance with a Board Resolution or an Officers' Certificate pursuant
to Section 2.3(a), as the case may be) will have been, duly authorized by
the Company and established in conformity with the provisions of this
Indenture; and
(y) that such Securities when (1) executed by the Company, (2)
completed, authenticated and delivered by the Trustee in accordance with
this Indenture, and (3) issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to customary exceptions.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 2.1 and 2.3(a) and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume, unless it has actual
knowledge to the contrary, that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 2.3(a) and of the preceding three
paragraphs, if all Securities of a series are subject to a Periodic Offering, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section
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2.3(a) at or prior to the time of authentication of each Security of such series
if such Officers' Certificate is delivered at or prior to the authentication
upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized signatory,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder. The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
United States Trust Company of New York, as Trustee
By:
-------------------------------------------
Authorized Signatory
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.12 together with a written statement (which need not
comply with Section 13.4 or 13.5 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 2.5 REGISTRAR AND PAYING AGENT. The Company shall maintain,
with respect to each series of Securities, an office or agency where such
Securities may be presented for registration of transfer or for exchange
("REGISTRAR") and, in the Borough of Manhattan, The City of New York, an
office or agency where such Securities may be
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presented for purchase or payment ("PAYING AGENT"). The Registrar shall keep
a register of the Securities and of their transfer and exchange. The Company
may have one or more co-registrars and one or more additional paying agents.
The term Paying Agent includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with respect
to each series of Securities with any Registrar, Paying Agent or co-registrar
(if not the Trustee). The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of
the name and address of any such agent. If the Company fails to maintain a
Registrar or Paying Agent for a particular series of Securities, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.7. The Company or any Subsidiary or an Affiliate of
either of them may act as Paying Agent, Registrar or co-registrar.
The Company initially appoints the Trustee as the Registrar and Paying
Agent in connection with such Securities.
SECTION 2.6 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST. Except
as otherwise provided herein, prior to or on each due date of payments in
respect of any series of Securities, the Company shall deposit with the
Paying Agent with respect to such Securities a sum of money sufficient to
make such payments when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all money
held by such Paying Agent for the making of payments in respect of the
Securities of such series and shall notify the Trustee of any default by the
Company in making any such payment. At any time during the continuance of
any such default, a Paying Agent shall, upon the written request of the
Trustee, forthwith pay to the Trustee all money so held in trust with respect
to such Securities. If the Company, a Subsidiary or an Affiliate of either
of them acts as Paying Agent for a series of Securities, it shall segregate
the money held by it as Paying Agent with respect to such Securities and hold
it as a separate trust fund. The Company at any time may require a Paying
Agent for a series of Securities to pay all money held by it with respect to
such Securities to the Trustee and to account for any money disbursed by it.
Upon doing so, such Paying Agent shall have no further liability for the
money.
SECTION 2.7 SECURITYHOLDER LISTS. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders of each series of Securities. If the Trustee is
not the Registrar for any series of Securities, the Company shall cause to be
furnished to the Trustee at least semiannually on June 1 and December 1 a
listing of Holders of such series of Securities dated within 15 days of the date
on which the list is furnished and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee
14
may reasonably require of the names and addresses of Securityholders of such
series of Securities.
SECTION 2.8 TRANSFER AND EXCHANGE. Upon surrender for registration of
transfer of any Security at the office or agency of the Company designated
pursuant to Section 4.5 for such purpose, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of any authorized denomination or
denominations of a like aggregate Principal Amount and tenor. The Company shall
not charge a service charge for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges that may be imposed in connection with
the transfer or exchange of the Securities from the Securityholder requesting
such transfer or exchange (other than any exchange of a temporary Security for a
definitive Security not involving any change in ownership or any exchange
pursuant to Section 2.11, 3.6, 9.5 or 10.3, not involving any transfer).
Notwithstanding any other provisions (other than the provisions set forth
in the sixth and seventh paragraphs) of this Section, a Security in global form
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.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series of any authorized denomination or
denominations, of a like aggregate Principal Amount and tenor, upon surrender of
the Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee or a duly appointed authenticating agent shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form in an aggregate Principal Amount equal to the
Principal
15
Amount of the Security or Securities in global form representing such series in
exchange for such Security or Securities in global form.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series in definitive form and
in an aggregate Principal Amount equal to the Principal Amount of the Security
or Securities in global form representing such series in exchange for such
Security or Securities in global form.
Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 2.3(a), any permanent
global Security shall be exchangeable only as provided in this paragraph. If
the beneficial owners of interests in a permanent global Security are entitled
to exchange such interests for definitive Securities of such series and of like
Principal Amount and tenor but of another authorized form and denomination, as
specified as contemplated by Section 2.3(a), then without unnecessary delay but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
aggregate Principal Amount equal to the Principal Amount of such permanent
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered by the Depositary with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, an equal aggregate Principal Amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged; PROVIDED, HOWEVER, that
notwithstanding the last paragraph of this Section 2.8, no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date. If a Security is issued in exchange for any portion of a
permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, interest
or Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Security, but will be payable on such Interest Payment Date or proposed
date for payment, as the case may be, only to the Person to whom interest in
respect of such portion of such permanent global Security is payable in
accordance with the provisions of this Indenture.
16
Upon the exchange of a Security in global form for Securities in
definitive form, such Security in global form shall be cancelled by the
Trustee. Securities issued in exchange for a Security in global form pursuant
to this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending (except as otherwise provided in the first proviso in the
eighth paragraph of this Section 2.8) at the close of business on the day of the
mailing of the relevant notice of redemption, or (ii) to register the transfer
of or exchange any Security so selected for redemption, in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
SECTION 2.9 REPLACEMENT SECURITIES. If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
BONA FIDE purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like tenor and Principal Amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
17
Upon the issuance of any new Securities under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and any such
new Security shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities of that issue duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.10 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS' ACTION.
Securities of any series "OUTSTANDING" at any time are, as of the date of
determination, all the Securities of such series theretofore authenticated by
the Trustee for such series except for those cancelled by it, those delivered
to it for cancellation and those described in this Section 2.10 as not
outstanding. A Security does not cease to be "OUTSTANDING" because the
Company or an Affiliate thereof holds the Security; PROVIDED, HOWEVER, that
in determining whether the Holders of the requisite Principal Amount of
Outstanding Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities
owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and
deemed not to be outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor. Subject to the foregoing, only Securities outstanding at
the time of such determination shall be considered in any such determination
(including, without limitation, determinations pursuant to Articles 6 and 9).
In addition, in determining whether the Holders of the requisite Principal
Amount of Outstanding Securities have given or concurred in any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
Principal Amount of a Discount Security that shall be deemed to be
Outstanding shall be the amount of the Principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 6.2.
18
If a Security has been paid pursuant to Section 2.9 or in exchange for or
in lieu of which another Security has been authenticated and delivered pursuant
to this Indenture, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a BONA FIDE purchaser.
If the Trustee (other than the Company) holds, in accordance with this
Indenture, on a Redemption Date or on Stated Maturity, money sufficient to pay
Securities payable on that date, then on and after that date such Securities
shall cease to be outstanding and interest, if any, on such Securities shall
cease to accrue; PROVIDED, that if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made.
SECTION 2.11 TEMPORARY SECURITIES. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, in registered form, and with such appropriate insertions,
omissions, substitutions and other variations as the Officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
If temporary Securities for some or all of the Securities of any series are
issued, the Company will cause definitive Securities representing such
Securities to be prepared without unreasonable delay. After the preparation of
such definitive Securities, the temporary Securities shall be exchangeable for
such definitive Securities of like tenor upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 4.5 for such series for the purpose of exchanges of
Securities of such series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like Principal Amount of definitive Securities of the same series and
of like tenor of authorized denominations. Until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as permanent Securities of the same series and of like
tenor authenticated and delivered hereunder.
SECTION 2.12 CANCELLATION. All Securities surrendered for payment,
redemption, registration of transfer or exchange, or for credit against any
sinking fund payment, shall, if surrendered to any person other than the
Trustee, be delivered to the Trustee and
19
all Securities so delivered shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever (including Securities received by the Company in exchange or
payment for other Securities of the Company) and may deliver to the Trustee (or
to any other person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. The
Company may not reissue, or issue new Securities to replace, Securities it has
paid or delivered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted in the form of Securities for any
particular series or as permitted by this Indenture. All cancelled Securities
held by the Trustee shall be destroyed by the Trustee and evidence of their
destruction delivered to the Company unless the Company directs by Company Order
that the Trustee deliver cancelled Securities to the Company.
SECTION 2.13 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Unless
otherwise provided as contemplated by Section 2.3(a) with respect to any series
of Securities, interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the
20
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities at his
address as it appears in the Security Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the persons in whose names
the Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and Section 2.8, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.14 PERSONS DEEMED OWNERS. Prior to due presentment of a Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
Principal of and (except as otherwise specified as contemplated by Section
2.3(a) and subject to Section 2.8 and Section 2.13) interest on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Registrar will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 2.15 COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 2.3(a) for Securities of any series, (i) interest on any
Securities which bear interest at a fixed rate shall be computed on the basis of
a 360-day year comprised of twelve 30-day months and (ii) interest on any
Securities which bear interest
21
at a variable rate shall be computed on the basis of the actual number of days
in an interest period divided by 360.
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT TO REDEEM; NOTICES TO TRUSTEE. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as
contemplated by Section 2.3(a) for Securities of any series) in accordance
with this Article. In the case of any redemption at the election of the
Company of less than all of the Securities of any series, the Company shall,
within the time period set forth below, notify the Trustee in writing of the
Redemption Date, the Principal Amount and any other information necessary to
identify the Securities of such series to be redeemed and the Redemption
Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.1 at least 60 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED. Unless otherwise
specified as contemplated by Section 2.3(a) with respect to any series of
Securities, if less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to be redeemed, the Trustee shall
select the particular Securities to be redeemed by a method the Trustee
considers fair and appropriate, which method may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the Principal
Amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. The Trustee shall make
the selection not more than 60 days before the Redemption Date from Outstanding
Securities of such series not previously called for redemption. Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall notify the
Company promptly in writing of the Securities to be redeemed and, in the case of
any portions of Securities to be redeemed, the principal amount thereof to be
redeemed.
SECTION 3.3 NOTICE OF REDEMPTION. Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of Securities, at
least 30 days but not more than 60 days before a Redemption Date, the Company
shall mail a notice of redemption by first-class mail, postage prepaid, to each
Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
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(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the Principal Amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security (or portion thereof) to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after
said date;
(5) the place or places where such Securities maturing after the
Redemption Date, are to be surrendered for payment of the Redemption Price;
and
(6) that the redemption is for a sinking fund, if such is the case.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense; PROVIDED, HOWEVER, that, in
all cases, the text of such Company Notice shall be prepared by the Company.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption is
given, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice, and from and after such
date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; PROVIDED, HOWEVER, that, unless
otherwise specified as contemplated by Section 2.3(a), installments of interest
on Securities whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Sections 2.8 and
2.13.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the Principal shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE. Prior to or on the Redemption
Date, the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of either of them is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, of all Securities to be redeemed on that
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date other than Securities or portions of Securities called for redemption which
prior thereto have been delivered by the Company to the Trustee for
cancellation. If such money is then held by the Company in trust and is not
required for such purpose, it shall be discharged from such trust.
SECTION 3.6 SECURITIES REDEEMED IN PART. Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company designated therefor pursuant to Section 4.5 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and upon such surrender,
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security a new Security or Securities of the same series and of
like tenor, in an authorized denomination as requested by such Holder, equal in
aggregate Principal Amount to and in exchange for the unredeemed portion of the
Principal of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF SECURITIES. The Company shall promptly make all
payments in respect of each series of Securities on the dates and in the manner
provided in the Securities and, to the extent not otherwise so provided,
pursuant to this Indenture. An installment of Principal of or interest on the
Securities shall be considered paid on the date it is due if the Trustee or a
Paying Agent (other than the Company or an Affiliate of the Company) holds on
that date funds designated for and sufficient to pay such installment. At the
Company's option, payments of Principal or interest may be made by check or by
transfer to an account maintained by the payee.
SECTION 4.2 SEC REPORTS. Company shall file with the Trustee, within 15
days after it files such annual and quarterly reports, information, documents
and other reports with the SEC, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. The Company also shall comply with the other provisions of TIA
Section 314(a).
SECTION 4.3 COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the first fiscal year ending on or after the date hereof) an
Officers' Certificate stating whether or not the signers know of any Default
that occurred during such period. If they do, such Officers' Certificate shall
describe the Default and its status.
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SECTION 4.4 FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee, the
Company will execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purposes of this Indenture.
SECTION 4.5 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 of that series may be presented or surrendered for payment, where any
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, purchase or
redemption and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served. The office of
the Trustee in New York, New York shall be such office or agency for all of the
aforesaid purposes unless the Company shall maintain some other office or agency
for such purposes and shall give prompt written notice to the Trustee of the
location, and any change in the location, of such other office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations and surrenders of Securities of that
series may be made and notices and demands may be made or served at the address
of the Trustee set forth in Section 13.2, and the Company hereby appoints the
same as its agent to receive such respective presentations, surrenders, notices
and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any
such other office or agency.
SECTION 4.6 LIMITATIONS ON THE INCURRENCE OF CERTAIN OTHER DEBT. The
Company shall not create, incur, issue, assume, guaranty or otherwise become
directly or indirectly liable for or with respect to or otherwise permit to
exist any Debt of the Company that is subordinate in right of payment to any
Debt of the Company unless such Debt is either PARI PASSU with the Securities or
subordinate in right of payment to the Securities pursuant to subordination
provisions that are at least as favorable to the holders of the Securities as
the subordination provision set forth in this Indenture with respect to Senior
Indebtedness.
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ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. The Company shall
not consolidate with or merge with or into any other person or convey, transfer
or lease its properties and assets substantially as an entirety to any person,
unless:
(a) either (1) the Company shall be the continuing corporation or
(2) the person (if other than the Company) formed by such
consolidation or into which the Company is merged or the person which
acquires by conveyance, transfer or lease the properties and assets of
the Company substantially as an entirety (i) shall be a corporation,
partnership or trust organized and validity existing under the laws of
the United States or any state thereof or the District of Columbia and
(ii) shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of the Company under the Securities
and this Indenture;
(b) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article and
that all conditions precedent herein relating to such transaction have
been satisfied.
The successor person formed by such consolidation or into which the Company
is merged or the successor person to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company herein; and thereafter, except in the
case of a lease of its properties and assets substantially as an entirety, the
Company shall be discharged from all obligations and covenants under this
Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. Unless otherwise specified as contemplated
by Section 2.3(a) with respect to any series of securities, an "EVENT OF
DEFAULT" occurs, with respect to each series of the Securities individually, if:
26
(1) the Company defaults in (a) the payment of the principal of any
Security of such series at its Maturity or (b) the payment of any interest upon
any Security of such series when the same becomes due and payable and
continuance of such default for a period of 30 days;
(2) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in clause (1) above
and other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which has been
expressly included in this Indenture solely for the benefit of a series of
Securities other than such series) and such failure continues for 60 days after
receipt by the Company of a Notice of Default;
(3) there shall have been the entry by a court of competent jurisdiction of
(a) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Bankruptcy Law or (b) a decree or order
adjudging the Company bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or ordering the wind up or
liquidation of its affairs, and any such decree or order for relief shall
continue to be in effect, or any such other decree or order shall be unstayed
and in effect, for a period of 60 consecutive days;
(4) (a) the Company commences a voluntary case or proceeding under any
applicable Bankruptcy Law or any other case or proceeding to be adjudicated
bankrupt or insolvent, (b) the Company consents to the entry of a decree or
order for relief in respect of the Company in an involuntary case or proceeding
under any applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, (c) the Company files a petition or
answer or consent seeking reorganization or substantially comparable relief
under any applicable federal state law, (d) the Company (x) consents to the
filing of such petition or the appointment of, or taking possession by, a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, (y) makes an
assignment for the benefit of creditors or (z) admits in writing its inability
to pay its debts generally as they become due or (e) the Company takes any
corporate action in furtherance of any such actions in this clause (4); or
(5) any other Event of Default provided with respect to Securities of that
series.
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"BANKRUPTCY LAW" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
Federal or state law for the relief of debtors. "CUSTODIAN" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Outstanding Securities of such series notify the Company
and the Trustee, of the Default and the Company does not cure such Default
within the time specified in clause (2) above after receipt of such notice. Any
such notice must specify the Default, demand that it be remedied and state that
such notice is a "NOTICE OF DEFAULT."
SECTION 6.2 ACCELERATION. If an Event of Default with respect to
Securities of any series at the time Outstanding (other than an Event of Default
specified in Section 6.1(3) or (4)) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in aggregate Principal
Amount of the Outstanding Securities of that series by notice to the Company and
the Trustee, may declare the Principal Amount (or, if any of the Securities of
that series are Discount Securities, such portion of the Principal Amount of
such Securities as may be specified in the terms thereof) of all the Securities
of that series to be immediately due and payable. Upon such a declaration, such
Principal (or portion thereof) shall be due and payable immediately. If an
Event of Default specified in Section 6.1(3) or (4) occurs and is continuing,
the Principal (or portion thereof) of all the Securities of that series shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder) may
rescind an acceleration with respect to that series and its consequences if the
rescission would not conflict with any judgment or decree and all existing
Events of Default with respect to Securities of such series have been cured or
waived except nonpayment of the Principal (or portion thereof) of Securities of
such series that has become due solely as a result of such acceleration and if
all amounts due to the Trustee under Section 7.7 have been paid. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.3 OTHER REMEDIES. If an Event of Default with respect to a
series of Outstanding Securities occurs and is continuing, the Trustee may
pursue any available remedy to (a) collect the payment of the whole amount then
due and payable on such Securities for Principal and interest, with interest
upon the overdue Principal and, to the extent that payment of such interest
shall be legally enforceable, upon overdue installments of interest from the
date such interest was due, at the rate or rates prescribed therefor in such
Securities and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including amounts due the Trustee
under Section 7.7 or (b) enforce the performance of any provision of the
Securities or this Indenture.
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The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.4 WAIVER OF PAST DEFAULTS. The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder), may on
behalf of the Holders of all the Securities of such series waive an existing
Default with respect to such series and its consequences except (1) an Event of
Default described in Section 6.1(1) with respect to such series or (2) a Default
in respect of a provision that under Section 9.2 cannot be amended without the
consent of the Holder of each Outstanding Security of such series affected.
When a Default is waived, it is deemed cured, but no such waiver shall extend to
any subsequent or other Default or impair any consequent right.
SECTION 6.5 CONTROL BY MAJORITY. The Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee with
respect to the Securities of such series. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines in good faith is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability.
SECTION 6.6 LIMITATION ON SUITS. A Holder of any Security of any series
may not pursue any remedy with respect to this Indenture or the Securities
unless:
(1) the Holder gives to the Trustee written notice stating that an Event of
Default with respect to the Securities of that series is continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of that series make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense satisfactory to the Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity; and
29
(5) the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of that series do not give the Trustee a direction
inconsistent with such request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of any
other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right, which is absolute and
unconditional, of any Holder of any Security to receive payment of the Principal
of and (subject to Section 2.13) interest on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) held by such Holder, on or after the
respective due dates expressed in the Securities or any Redemption Date, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected adversely without the consent of each
such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE. If an Event of Default described
in Section 6.1(1) with respect to Securities of any series occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount owing with respect to
such series of Securities and the amounts provided for in Section 7.7.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the Principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
Principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of Principal
and interest owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amount due the Trustee
under Section 7.7) and of the Holders of Securities allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
30
and any Custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities 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
of Securities, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee or the
holders of Senior Indebtedness to authorize or consent to or accept or adopt on
behalf of any Holder of a Security 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 of a Security in any such proceeding.
SECTION 6.10 PRIORITIES. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order and, in case
of the distribution of such money on account of Principal or interest, upon
presentation of the Securities, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to holders of Senior Indebtedness as provided for in Article XII;
THIRD: to Securityholders for amounts due and unpaid for the Principal and
interest on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for Principal and
interest, respectively; and
FOURTH: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 UNDERTAKING FOR COSTS. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 6.11 does not apply to a suit by the
31
Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more
than 10% in aggregate Principal Amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder of any Security for the
enforcement of the payment of the Principal of or interest on any Security on or
after the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others and shall not be liable except
for the performance of such duties; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
32
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall not be
liable for any interest on any money received by it except as the Trustee may
otherwise agree with the Company.
SECTION 7.2 RIGHTS OF TRUSTEE. (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.1 (c), the Trustee shall not be
liable for any action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE, ETC. 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 Trustee. Any Paying Agent, Registrar or
co-registrar or any other agent of the Company
33
may do the same with like rights. However, the Trustee must comply with Sections
7.10 and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER. The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Securities. The Trustee
shall not be accountable for the Company's use of the proceeds from the
Securities and, shall not be responsible for any statement in the registration
statement for the Securities under the Securities Act of 1933, as amended, or in
the Indenture or the Securities (other than its certificate of authentication)
or for the determination as to which beneficial owners are entitled to receive
any notices hereunder.
SECTION 7.5 NOTICE OF DEFAULTS. If a Default with respect to the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall give to each Holder of Securities of such series
notice of such Default in the manner set forth in TIA Section 315(b) within 90
days after it occurs. The Trustee shall have no duty to inquire as to the
performance of the Company's covenants in Article IV hereof. In addition, the
Trustee shall not be deemed to have knowledge of any Default or Event of Default
except (i) any Event of Default occurring pursuant to Section 4.1 or 6.1(l) or
(ii) any Default or Event of Default of which the Trustee shall have received
written notification or obtained actual knowledge.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each May
15 beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Holder of Securities a brief report dated as of such May 15
that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b) and (c).
A copy of each report at the time of its mailing to Holders of Securities
shall be filed with the SEC and each stock exchange on which the Securities of
that series may be listed. The Company agrees to notify the Trustee whenever
the Securities of a particular series become listed on any stock exchange and of
any delisting thereof.
SECTION 7.7 COMPENSATION AND INDEMNITY. The Company agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses, advances and disbursements
of its agents and counsel), except any
34
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay the Principal of
or interest, if any, on particular Securities.
The Company's payment obligations pursuant to this Section 7.7 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.1(3) or (4), the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8 REPLACEMENT OF TRUSTEE. The Trustee may resign by so notifying
the Company; PROVIDED, HOWEVER, no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant to this Section 7.8.
The Holders of a majority in aggregate Principal Amount of the Outstanding
Securities of any series at the time outstanding may remove the Trustee with
respect to the Securities of such series by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, with respect to the Securities of one or more series,
the Company shall promptly appoint, by resolution of its Board of Directors, a
successor Trustee with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any series).
35
In the case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective and the successor Trustee shall have all the rights, powers and duties
of the Trustee under this Indenture. The successor Trustee shall mail a notice
of its succession to Holders of Securities of the particular series with respect
to which such successor Trustee has been appointed. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.7.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees as co-Trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject,
nevertheless, to its lien, if any, provided for in Section 7.7.
If a successor Trustee with respect to the Securities of any series does
not take office within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of such series at the time
outstanding may petition any court of competent
36
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of a Security
of such series may petition any court of competent jurisdiction for the removal
of such Trustee and the appointment of a successor Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all times
satisfy the requirements of TIA Section 310(a)(1) and 310(a)(5). The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b). In determining whether the Trustee has
conflicting interests as defined in TIA Section 310(b)(1), the provisions
contained in the proviso to TIA Section 310(b)(1) shall be deemed incorporated
herein.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VII
SATISFACTION AND DISCHARGE
SECTION 8.1 DISCHARGE OF LIABILITY ON SECURITIES. Except as otherwise
provided as contemplated by Section 2.3(a), when (a) the Company delivers to the
Trustee all Outstanding Securities or all Outstanding Securities of any series,
as the case may be, theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9, (ii) Securities for whose payment
money has theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from such trust,
as provided in Section 2.6) for cancellation or (b) all Outstanding Securities
have become due and payable and the Company deposits with the Trustee cash
sufficient to pay at Stated Maturity the Principal Amount of all Principal of
and interest on Outstanding Securities or all Outstand-
37
ing Securities of such series (other than Securities replaced pursuant to
Section 2.9), and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to Section 7.7,
cease to be of further effect as to all Outstanding Securities or all
Outstanding Securities of any series, as the case may be. The Trustee shall
join in the execution of a document prepared by the Company acknowledging
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and Opinion of Counsel and at the cost
and expense of the Company.
SECTION 8.2 REPAYMENT TO THE COMPANY. The Trustee and the Paying Agent
shall return to the Company on Company Request any money held by them for the
payment of any amount with respect to the Securities that remains unclaimed for
two years; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before
being required to make any such return, may at the expense and direction of the
Company mail to each Holder of such Securities notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such mailing, any unclaimed money then remaining will
be returned to the Company. After return to the Company, Holders entitled to
the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
SECTION 8.3 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE. Unless
otherwise specified as contemplated by Section 2.3(a) with respect to Securities
of a particular series, the Company, may at its option, by Board Resolution, at
any time, with respect to any series of Securities, elect to have either Section
8.4 or Section 8.5 be applied to all of the outstanding Securities of any series
(the "Defeased Securities"), upon compliance with the conditions set forth below
in this Article VIII.
SECTION 8.4 DEFEASANCE AND DISCHARGE. Upon the Company's exercise under
Section 8.3 of the option applicable to this Section 8.4, the Company shall be
deemed to have been discharged from its obligations with respect to the Defeased
Securities on the date the conditions set forth below are satisfied (hereinafter
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by the
defeased Securities, which shall thereafter be deemed to be "outstanding" only
for the purposes of Sections 2.4, 2.5, 2.6, 2.9, 2.11, 2.12, 4.1, 4.5, 6.6, 6.7,
7.7, 7.8 and 8.2 of this Indenture and to have satisfied all its other
obligations under such series of Securities and this Indenture insofar as such
series of Securities are concerned (and the Trustee, at the expense of the
Company, and, upon written request, shall execute proper instruments
acknowledging the same). Subject to compliance with this Article VIII, the
Company may exercise its option under this Section 8.4 notwithstanding the prior
exercise of its option under Section 8.5 with respect to a series of Securities.
SECTION 8.5 COVENANT DEFEASANCE. Upon the Company's exercise under Section
8.3 of the option applicable to this Section 8.5, the Company shall be released
from its obligations under Sections 4.2 and 4.3 and Article V and such other
provisions as may be provided as contemplated by Section 2.3(a) with respect to
Securities of a particular series and with respect to the Defeased Securities on
and after the date the
38
conditions set forth below are satisfied (hereinafter "covenant defeasance"),
and the Defeased Securities shall thereafter be deemed to be not "outstanding"
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences if any thereof) in connection with such covenants,
but shall continue to be deemed "outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to the
Defeased Securities, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or Article, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or Article or by reason of any reference in
any such Section or Article to any other provisions herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 6.1 but, except as specified above, the remainder of
this Indenture and such Defeased Securities shall be unaffected thereby.
SECTION 8.6 CONDITION TO DEFEASANCE OR COVENANT DEFEASANCE. The following
shall be the conditions to application of either Section 8.4 or Section 8.5 to a
series of outstanding Securities.
(a) The Company shall have irrevocably deposited with the Trustee, in
trust, (i) sufficient funds to pay the Principal of and interest to Stated
Maturity (or redemption) on, the Debt Securities of such series, or (ii) such
amount of direct obligations of, or obligations the principal of and interest on
which are fully guaranteed by, the government of the United States, and which
are not subject to prepayment, redemption or call, as will, together with the
predetermined and certain income to accrue thereon without consideration of any
reinvestment thereof, be sufficient to pay when due the Principal of, and
interest to Stated Maturity (or redemption) on, the Debt Securities of such
series.
(b) The Company shall have delivered to the Trustee an opinion of counsel
to the effect that the funds deposited pursuant to Section 8.6(a) will not be
subject to any rights of the holders of Senior Indebtedness.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without
the consent of any Holders of Securities, the Company and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
39
(2) to add to the covenants, agreements and obligations of the Company
for the benefit of the Holders of all of the Securities or any series
thereof, or to surrender any right or power herein conferred upon the
Company; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3(a), respectively; or
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 7.8; or
(5) to cure any ambiguity, defect or inconsistency; or
(6) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more
series of Securities), PROVIDED that any such addition, change or
elimination shall neither (A) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any
such Security with respect to such provision; or
(7) to secure the Securities; or
(8) to make any other change that does not adversely affect the rights
of any Securityholder.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
written consent of the Holders of at least a majority in aggregate Principal
Amount of the Outstanding Securities of each series affected by such
supplemental indenture, the Company and the Trustee may amend this Indenture or
the Securities of any series or may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of the Securities of such
series under this Indenture; PROVIDED, HOWEVER, that no such amendment or
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the Principal of, or any installment
of Principal of or interest on, any such Security, or reduce the Principal
Amount thereof or the rate of interest thereon or any premium payable upon
redemption thereof or reduce the amount of Principal of any such Discount
Security that would be due and payable upon a declaration of acceleration
of maturity thereof pursuant to
40
Section 6.2, or change the Place of Payment, or change the coin or currency
in which, any Principal of, or any installment of interest on, any such
Security is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date);
(2) reduce the percentage in Principal Amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such amendment or supplemental indenture, or the consent of whose Holders
is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) with
respect to the Securities of such series provided for in this Indenture;
(3) make any change in the terms of the Subordination of the
Securities in a manner adverse to the Holders of any series of outstanding
Securities; or
(4) modify any of the provisions of this Section, Section 6.4 or 6.7,
except to increase the percentage of Outstanding Securities of such series
required for such actions 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 the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of the Holders under this Section
9.2 to approve the particular form of any proposed amendment or supplemental
indenture, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment or supplemental indenture under this Section 9.2 becomes
effective, the Company shall mail to each Holder of the particular Securities
affected thereby a notice briefly describing the amendment.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS. Until
an amendment or waiver with respect to a series of Securities becomes effective,
a consent to it or any other action by a Holder of a Security of that series
hereunder is a continuing
41
consent by the Holder and every subsequent Holder of that Security or portion of
that Security that evidences the same obligation as the consenting Holder's
Security, even if notation of the consent, waiver or action is not made on the
Security. However, any such Holder or subsequent Holder may revoke the consent,
waiver or action as to such Holder's Security or portion of the Security if the
Trustee receives the notice of revocation before the Company or an agent of the
Company certifies to the Trustee that the consent of the requisite aggregate
Principal Amount of the Securities of that series has been obtained. After an
amendment, waiver or action becomes effective, it shall bind every Holder of
Securities of that series.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver with respect to a series of Securities. If a record date is fixed, then
notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Holders of Securities of that series at such record date
(or their duly designated proxies), and only those persons, shall be entitled to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES. Securities of any
series authenticated and delivered after the execution of any supplemental
indenture with respect to such series pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of such series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for outstanding Securities of that series.
SECTION 9.6 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee shall
sign any supplemental indenture authorized pursuant to this Article 9 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment, the Trustee shall be entitled to receive, and
(subject to the provisions of Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.7 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby, except
to the extent otherwise set forth thereon.
42
ARTICLE X
SINKING FUNDS
SECTION 10.1 APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 2.3(a) for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "MANDATORY SINKING FUND
PAYMENT," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "OPTIONAL SINKING
FUND PAYMENT." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 10.2. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of the Securities of
such series.
SECTION 10.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES. The
Company (1) may deliver Outstanding Securities of a series with the same issue
date, interest rate and Stated Maturity (other than any previously called for
redemption), and (2) may apply as a credit Securities of a series with the same
issue date, interest rate and Stated Maturity which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case, in satisfaction of all or any part of
any mandatory sinking fund payment with respect to the Securities of such series
with the same issue date, interest rate and Stated Maturity; PROVIDED that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 10.3 REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than 60
days (or such shorter period as shall be acceptable to the Trustee) prior to
each sinking fund payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the amount of the
next sinking fund payment for that series pursuant to the terms of that series,
the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 10.2 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
3.2 and cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 3.3. Such notice
having been duly
43
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 3.4 and 3.6.
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 11.2 CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 11.1, to be held at such time and at such place in the
Borough of Manhattan, The City of New York or, with the approval of the Company,
at any other place. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 13.2, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company or the Holders of at least 10% in
Principal Amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 11.1, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, or in such other place as shall be determined and approved
by the Company, for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this Section 11.2.
SECTION 11.3 PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to vote
at any meeting of Holders of Securities of any series, a person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
44
SECTION 11.4 QUORUM; ACTION. The persons entitled to vote a majority in
Principal Amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series. In the absence of
a quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case, the meeting may be adjourned for a
period determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 11.2(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in Principal Amount of the Outstanding Securities of that series; PROVIDED,
HOWEVER, that, except as limited by the proviso to Section 9.2, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority, in Principal Amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in Principal Amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series, whether or not present
or represented at the meeting.
SECTION 11.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
11.7 and the appointment of any proxy shall be proved in the manner specified in
Section 11.7. Such regulations may provide that written instruments appointing
proxies, regular on their
45
face, may be presumed valid and genuine without the proof specified in Section
11.7 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 11.2 (b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the persons entitled to vote a majority in Principal Amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to vote with respect to the Outstanding Securities of such series
held or represented by him; PROVIDED, HOWEVER, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a Security of
such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 11.2 at which a quorum is present may be adjourned from time to time
by persons entitled to vote a majority in Principal Amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 11.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed signatures of
the Holders of Securities of such series or of their representatives by proxy
and the Principal Amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 11.2 and, if applicable, Section 11.4. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
46
SECTION 11.7 ACTIONS OF HOLDERS GENERALLY. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
person of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 7.1) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 11.6.
(b) The fact and date of the execution by any person of any such instrument
or writing, or the authority of the persons executing the same, may be proved in
any reasonable manner which the Trustee deems sufficient.
(c) The Principal Amount and serial numbers of Securities held by the
person, and the date of holding the same, shall be proved by the books of the
Registrar.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other act of the Holder of any Security in accordance with this Section shall
bind every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other act in accordance
with this Section, the Company may, at its option, by or pursuant to an
Officers' Certificate delivered to the Trustee, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or such other act, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite percentage of
Outstanding Securities or Outstanding Securities of a series, as the case may
be, have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act, and for that
purpose the Outstanding Securities or Outstanding Securities of the series, as
the case may be, shall be computed as of such record date; PROVIDED, that no
such authorization, agreement or consent by the Holders on the record date shall
be deemed effective unless such request, demand, authorization, direction,
notice, consent, waiver or other act shall
47
become effective pursuant to the provisions of clause (a) of this Section 11.7
not later than six months after the record date.
ARTICLE XII
SUBORDINATION
SECTION 12.1 SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS. Unless
otherwise specified as contemplated by Section 2.3(a), the Securities shall be
subordinated to Senior Indebtedness as set forth in this Article XII. The
Company covenants and agrees, and each Holder of a Security of any series by
such Holder's acceptance thereof likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article XII, the
indebtedness represented by the Securities and the payment of the Principal
Amount, interest and such other amounts as provided for in Section 2.3(a), if
any, in respect of each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
"SENIOR INDEBTEDNESS" means the principal of (and premium, if any) and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Bankruptcy Law, but only to the extent
allowed or permitted to the holder of such Debt of the Company against the
bankruptcy or any other insolvency estate of the Company in such proceeding) and
other amounts due on or in connection with any Debt of the Company incurred,
assumed or guaranteed by the Company, whether outstanding on the date of the
Indenture or thereafter incurred, assumed or guaranteed and all renewals,
extensions and refundings of any such Debt of the Company; provided, however,
that the following will not constitute Senior Indebtedness:
(a) any Debt of the Company as to which, in the instrument creating the
same or evidencing the same or pursuant to which the same is outstanding,
it is expressly provided that such Debt of the Company shall be
subordinated to any other Debt of the Company, unless such Debt of the
Company expressly provides that such Debt of the Company shall be senior in
right of payment to the Securities;
(b) any Debt of the Company which by its terms states that such Debt of
the Company shall not be senior in right of payment to the Securities;
(c) Debt of the Company in respect of the Securities; and
(d) any Debt of the Company to any Affiliate of the Company or Subsidiary
of the Company.
SECTION 12.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. Upon any
distribution of assets of the Company in the event of:
48
(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or
(b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company,
then and in such event
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in cash,
before the Holders of the Securities are entitled to receive any payment on
account of the Principal Amount, interest or such other amounts as may be
provided for in Section 2.3(a), if any, in respect of the Securities; and
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article XII, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other Debt of the Company being subordinated to the payment of the
Securities, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under 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 principal of, and premium, if any, and interest on the
Senior Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this Section
12.2, the Trustee or the Holder of any Security shall receive any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other Debt of the Company
being subordinated to the payment of the Securities, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall then have been made known to the Trustee as
49
provided in Section 12.10, or, as the case may be, such Holder, then and in such
event such payment or distribution shall be paid over or delivered forthwith to
the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other person making payment or distribution of assets of the Company
for application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all Senior Indebtedness in full, after giving effect
to any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
For purposes of this Article XII only, the words "CASH, PROPERTY OR
SECURITIES," or any combination thereof, shall not be deemed to include shares
of Capital Stock of the Company as reorganized or readjusted, or securities of
the Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinated, at least to the extent
provided in this Article XII with respect to the Securities, to the payment of
all Senior Indebtedness which may at the time be outstanding; PROVIDED, HOWEVER,
that (i) Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment, and (ii) the rights of
the holders of the Senior Indebtedness are not, without the consent of such
holders, altered, in any manner adverse to such holders, by such reorganization
or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company following
the conveyance or transfer of all or substantially all of its assets to another
person upon the terms and conditions set forth in Article V shall not be deemed
a dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshalling of assets and liabilities of the Company for
the purposes of this Section 12.2 if the corporation formed by such
consolidation or into which the Company is merged or the person which acquires
by conveyance or transfer all or substantially all of the assets of the Company,
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article V.
SECTION 12.3 ACCELERATION OF SECURITIES. In the event that any Securities
are declared due and payable before their Stated Maturity pursuant to Section
6.2, then and in each such event the Company shall promptly notify holders of
Senior Indebtedness of such acceleration. The Company may not pay the Securities
until 120 days have passed after such acceleration occurs and may thereafter pay
the Securities if this Article XII permits the payment at that time.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Securities prohibited by the
foregoing provisions of this Section 12.3, and if such facts then shall have
been known or thereafter shall have been made known to the Trustee (as provided
in Section 12.10) or to such Holder, as the case may be, pursuant to the terms
of this Indenture, then and in such event such payment shall be paid over and
delivered forthwith to the Company for the
50
benefit of the holders of Senior Indebtedness by or on behalf of the person
holding such payment.
The provisions of this Section 12.3 shall not apply to any payment with
respect to which Section 12.2 would be applicable.
SECTION 12.4 DEFAULT IN SENIOR INDEBTEDNESS. The Company may not make any
payment of the Principal Amount, interest or other such amounts as may be
provided for in Section 2.3(a), if any, in respect of the Securities and may not
acquire any Securities for cash or property (other than for Capital Stock of the
Company) if:
(1) a default on Senior Indebtedness occurs and is continuing that
permits holders of such Senior Indebtedness to accelerate its maturity; and
(2) the default is the subject of judicial proceedings or the Company
receives a notice of default thereof from any person who may give such
notice pursuant to the instrument evidencing or document governing such
Senior Indebtedness. If the Company receives any such notice, then a
similar notice received within nine months thereafter relating to the same
default on the same issue of Senior Indebtedness shall not be effective for
purposes of this Section 12.4.
The Company may resume payments on the Securities and may acquire
Securities if and when:
(A) the default is cured or waived; or
(B) 120 or more days pass after the receipt by the Company of the
notice described in clause (2) above and the default is not then the
subject of judicial proceedings; and
this Article XII otherwise permits the payment or acquisition at that time.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section 12.4, and if such fact then shall have been
known or thereafter shall have been made known to the Trustee as provided in
Section 12.10 or such Holder, as the case may be, pursuant to the terms of this
Indenture, then and in each such event such payment shall be paid over and
delivered forthwith to the Company for the benefit of the holders of the Senior
Indebtedness by or on behalf of the person holding such payment.
The provisions of this Section 12.4 shall not apply to any payment with
respect to which Section 12.2 would be applicable.
51
SECTION 12.5 PAYMENT PERMITTED IF NO DEFAULT. Nothing contained in this
Article XII or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Company, at any time except during the pendency of any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshalling of assets and liabilities of the
Company referred to in Section 12.2 or under the conditions described in Section
12.3 or 12.4, from making payments at any time of the Principal Amount, interest
or such other amounts as may be provided for in Section 2.3(a), if any, as the
case may be, in respect of the Securities, or (b) the application by the Trustee
or the retention by any Holder of any money deposited with it hereunder to the
payment of or on account of the Principal Amount, interest or such other amounts
as may be provided for in Section 2.3(a), if any, as the case may be, in respect
of the Securities if the Trustee did not have, at the time provided in the
proviso to the first paragraph of Section 12.10, notice that such payment would
have been prohibited by the provisions of this Article XII.
SECTION 12.6 SUBROGATION RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS. Subject
to the payment in full of all Senior Indebtedness, the Holders of the Securities
shall be subrogated to the extent of the payments or distributions made to the
holders of such Senior Indebtedness pursuant to the provisions of this Article
XII to the rights of the holders of such Senior Indebtedness to receive payments
or distributions of cash, property or securities applicable to the Senior
Indebtedness until the Principal Amount, interest or such other amounts as
provided for in Section 2.3(a), if any, as the case may be, in respect of the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Indebtedness of any cash, property
or securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article XII, and no payments pursuant
to the provisions of this Article XII to the Company or to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness and the Holders
of the Securities, be deemed to be a payment or distribution by the Company to
or on account of the Senior Indebtedness.
SECTION 12.7 PROVISION SOLELY TO DEFINE RELATIVE RIGHTS. The provisions of
this Article XII are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on one hand, and the holders of Senior
Indebtedness, on the other hand. Nothing contained in this Article XII or
elsewhere in this Indenture or in the Securities is intended to or shall:
(a) impair, as between the Company and the Holders of the
Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the Principal
Amount, interest or such other amounts as may be provided for in Section
2.3(a), if any, as the case may be, in respect of the Securities as and
when the same shall become due and payable in accordance with the terms of
the Securities and this Indenture and which, subject to the rights under
52
this Article XII of the holders of Senior Indebtedness, is intended to rank
equally with all other general obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company other than holders of Senior
Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article XII
of the holders of Senior Indebtedness to receive cash, property or
securities otherwise payable or deliverable to the Trustee or such Holder.
SECTION 12.8 TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of a
Security by such Holder's acceptance thereof authorizes and directs the Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article XII and appoints the
Trustee such Holder's attorney-in-fact for any and all such purposes.
SECTION 12.9 NO WAIVER OF SUBORDINATION PROVISIONS. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of, or notice to, the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article XII or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise dispose
of any property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any person liable in any manner for the collection of Senior
Indebtedness and (iv) exercise or refrain from exercising any rights against the
Company or any other person.
SECTION 12.10 NOTICE TO TRUSTEE. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of
53
any payment to or by the Trustee in respect of the Securities. Failure to give
such notice shall not affect the subordination of the Securities to Senior
Indebtedness. Notwithstanding the provisions of this Article XII or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof at the address specified in Section 13.2
from the Company or a holder of Senior Indebtedness or from any trustee or agent
therefor; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 7.1, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if a Trust Officer of
the Trustee shall not have received, at least three Business Days prior to the
date upon which by the terms hereof any such money may become payable for any
purpose (including, without limitation, the payment of the Principal Amount,
interest or such other amounts as may be provided for in Section 2.3(a), if any,
as the case may be, in respect of any Security), the notice with respect to such
money provided for in this Section 12.10, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
Subject to the provisions of Section 7.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a person representing himself
to be a holder of Senior Indebtedness (or a trustee or agent on behalf of such
holder) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee or agent on behalf of any such holder). In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XII, the
Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
person, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
person under this Article XII, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
of such person pursuant to the terms of this Indenture pending judicial
determination as to the right of such person to receive such payment.
SECTION 12.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENTS. Upon any payment or distribution of assets of the Company referred to
in this Article XII, the Trustee, subject to the provisions of Section 7.1, and
the Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
54
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of 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
XII.
SECTION 12.12 TRUSTEE NOT FIDUCIARY FOR 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 if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
XII or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would prohibit any payment
hereunder unless a Trust Officer of the Trustee shall have received notice to
that effect at the address of the Trustee set forth in Section 13.2. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article XII and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
SECTION 12.13 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article XII with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article XII shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.7.
SECTION 12.14 ARTICLE XII APPLICABLE TO PAYING AGENTS. The term "Trustee"
as used in this Article XII shall (unless the context otherwise requires) be
construed as extending to and including the Paying Agent within its meaning as
fully for all intents and purposes as if the Paying Agent were named in this
Article XII in addition to or in place of the Trustee; provided, however, that
Sections 12.10 and 12.12 shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.
55
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.2 NOTICES. Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail, postage prepaid, addressed as
follows:
if to the Company:
Apartment Investment and Management Company
0000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: [ ]
if to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication given to a Holder of Securities shall be mailed
to such Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Holders of
Securities of the same
56
series. If a notice or communication is mailed in the manner provided above, it
is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Holders of Securities
of a particular series, it shall mail a copy to the Trustee and each Registrar,
co-registrar or Paying Agent, as the case may be, with respect to such series.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give notice to Holders of
Securities by mail, then such notification as shall be made with the acceptance
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities given as provided herein.
SECTION 13.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Securityholders
may communicate pursuant to TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities. The Company and
the Trustee, the Registrar or the Paying Agent with respect to a particular
series of Securities, and anyone else, shall have the protection of TIA Section
312(c).
SECTION 13.4 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:
(1) 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
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each Officers'
Certificate or Opinion of Counsel with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
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(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 13.6 SEPARABILITY CLAUSE. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 13.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. With respect to
the Securities of a particular series, the Trustee with respect to such series
of Securities may make reasonable rules for action by or a meeting of Holders of
such series of Securities. With respect to the Securities of a particular
series, the Registrar and the Paying Agent with respect to such series of
Securities may make reasonable rules for their functions.
SECTION 13.8 LEGAL HOLIDAYS. A "LEGAL HOLIDAY" is any day other than a
Business Day. If any specified date (including an Interest Payment Date,
Redemption Date or Stated Maturity of any Security, or a date for giving notice)
is a Legal Holiday at any Place of Payment or place for giving notice, then
(notwithstanding any other provision of this Indenture or of the Securities
other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section) payment of interest or
Principal need not be made at such Place of Payment, or such other action need
not be taken, on such date, but the action shall be taken on the next succeeding
day that is not a Legal Holiday at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity or such other date and to the extent applicable no Original
Issue Discount or interest, if any, shall accrue for the intervening period.
SECTION 13.9 GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 13.10 NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder of such Security shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Securities.
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SECTION 13.11 SUCCESSORS. All agreements of the Company in this Indenture
and the Securities shall bind its respective successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 13.12 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 13.13 BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Securities, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder and the Holders of Securities, any
benefits or any legal or equitable right, remedy or claim under this Indenture.
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SECTION 13.14 MULTIPLE 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. One signed copy is enough to prove
this Indenture.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By:
--------------------------------
Name:
Title:
Attest:
-------------------------
Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By
---------------------------------
Name:
Title:
Attest:
-------------------------
Name:
Title:
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