Exhibit 4.3
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COMMERCE BANCORP, INC.
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INDENTURE
Dated as of [_______________ ___, 20__]
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THE BANK OF NEW YORK
as Trustee
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SUBORDINATED DEBT SECURITIES
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COMMERCE BANCORP, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND INDENTURE,
DATED AS OF [ ]
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
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310(a)(1) 8.09
310(a)(2) 8.09
310(a)(3) N/A
310(a)(4) N/A
310(a)(5) 8.09
310(b) 8.08
310(c) N/A
311(a) 8.13(i)
311(b) 8.13(ii)
311(b)(2) 6.03(a)
311(c) 6.03(c)
312(a) 6.01
312(b) 6.02(a)
312(c) 6.02(b)
313(a) 6.03(a)
313(b) 6.03(b)
313(c) 6.03(a), (b) and (c)
313(d) 6.03(c)
314(a)(1), (2) and (3) 6.04
314(a)(4) 5.10
314(b) N/A
314(c)(1) 1.02
314(c)(2) 1.02
314(c)(3) N/A
314(d) N/A
314(e) 1.02
314(f) N/A
315(a) 8.01(a)
315(b) 8.02
315(c) 8.01(b)
315(d) 8.01(c)
315(d)(1) 8.01(c)(1)
315(d)(2) 8.01(c)(2)
315(d)(3) 8.10(c)(3)
315(e) 7.14
316(a) 1.01
316(a)(1)(A) 7.13
316(a)(1)(B) 7.13
316(a)(2) N/A
316(b) 7.08
316(c) 1.04
317(a)(1) 7.03
317(a)(2) 7.04
317(b) 7.03
318(a) 1.07
THIS RECONCILIATION AND TIE SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
TABLE OF CONTENTS
PAGE
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ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions..........................................................................................1
Section 1.02 Compliance Certificates and Opinions.................................................................9
Section 1.03 Form of Documents Delivered to Trustee...............................................................9
Section 1.04 Acts of Securityholders.............................................................................10
Section 1.05 Notices, etc., to Trustee and Company...............................................................11
Section 1.06 Notices to Securityholders; Waiver..................................................................12
Section 1.07 Conflict with Trust Indenture Act...................................................................13
Section 1.08 Effect of Headings and Table of Contents............................................................13
Section 1.09 Successors and Assigns..............................................................................13
Section 1.10 Separability Clause.................................................................................13
Section 1.11 Benefits of Indenture...............................................................................13
Section 1.12 Legal Holidays......................................................................................13
Section 1.13 Governing Law.......................................................................................14
ARTICLE II.
SECURITY FORMS
Section 2.01 Forms Generally.....................................................................................14
Section 2.02 Form of Securities..................................................................................14
Section 2.03 Form of Trustee's Certificate of Authentication.....................................................15
ARTICLE III.
THE SECURITIES
Section 3.01 Title and Terms.....................................................................................15
Section 3.02 Denominations.......................................................................................17
Section 3.03 Execution, Authentication, Delivery and Dating......................................................18
Section 3.04 Temporary Securities................................................................................19
Section 3.05 Registration, Registration of Transfer and Exchange.................................................21
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities....................................................23
Section 3.07 Payment of Interest; Interest Rights Preserved......................................................23
Section 3.08 Persons Deemed Owners...............................................................................25
Section 3.09 Cancellation........................................................................................26
Section 3.10 Computation of Interest.............................................................................26
Section 3.11 CUSIP Numbers.......................................................................................26
ARTICLE IV.
REDEMPTION OF SECURITIES
Section 4.01 Applicability of Article............................................................................27
Section 4.02 Election to Redeem; Notice to Trustee...............................................................27
Section 4.03 Selection by Trustee of Securities to be Redeemed...................................................27
i
Section 4.04 Notice of Redemption................................................................................28
Section 4.05 Deposit of Redemption Price.........................................................................29
Section 4.06 Securities Payable on Redemption Date...............................................................29
Section 4.07 Securities Redeemed in Part.........................................................................30
Section 4.08 Redemption Suspended During Event of Default........................................................30
ARTICLE V.
COVENANTS
Section 5.01 Payment of Principal, Premium, if any, the Maturity Consideration and Interest......................30
Section 5.02 Maintenance of Office or Agency.....................................................................30
Section 5.03 Money or Other Property for Security Payments and Deliveries to be Held in Trust....................31
Section 5.04 Additional Amounts..................................................................................33
Section 5.05 Corporate Existence.................................................................................33
Section 5.06 Statement as to Compliance..........................................................................34
Section 5.07 Waiver of Certain Covenants.........................................................................34
Section 5.08 Calculation of Original Issue Discount..............................................................34
Section 5.09 Statement by Officers as to Default.................................................................35
ARTICLE VI.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 6.01 Company to Furnish Trustee Names and Addresses of Holders...........................................35
Section 6.02 Preservation of Information; Communications to Holders..............................................35
Section 6.03 Reports by Trustee..................................................................................36
Section 6.04 Reports by the Company..............................................................................37
ARTICLE VII.
REMEDIES
Section 7.01 Events of Default...................................................................................37
Section 7.02 Acceleration of Maturity; Rescission and Annulment..................................................38
Section 7.03 Collection of Indebtedness and Suits for Enforcement by Trustee.....................................39
Section 7.04 Trustee May File Proofs of Claim....................................................................40
Section 7.05 Trustee May Enforce Claims Without Possession of Securities.........................................41
Section 7.06 Application of Money or Other Property Collected....................................................41
Section 7.07 Limitation on Suits.................................................................................41
Section 7.08 Unconditional Right of Securityholders to Receive Principal, Premium,
Maturity Consideration and Interest.............................................. 43
Section 7.09 Restoration of Rights and Remedies..................................................................43
Section 7.10 Rights and Remedies Cumulative......................................................................43
Section 7.11 Delay or Omission Not Waiver........................................................................43
Section 7.12 Control by Holders..................................................................................43
Section 7.13 Waiver of Past Defaults.............................................................................44
Section 7.14 Undertaking for Costs...............................................................................44
Section 7.15 Waiver of Stay or Extension Laws....................................................................45
ARTICLE VIII.
THE TRUSTEE
Section 8.01 Certain Duties and Responsibilities.................................................................45
Section 8.02 Notice of Default...................................................................................46
Section 8.03 Certain Rights of Trustee...........................................................................46
Section 8.04 Not Responsible for Recitals or Issuance of Securities..............................................48
Section 8.05 May Hold Securities.................................................................................48
Section 8.06 Money or Other Property Held in Trust...............................................................48
Section 8.07 Compensation and Reimbursement......................................................................48
Section 8.08 Disqualification; Conflicting Interests.............................................................49
Section 8.09 Corporate Trustee Required; Eligibility.............................................................50
Section 8.10 Resignation and Removal; Appointment of Successor...................................................50
Section 8.11 Acceptance of Appointment by Successor..............................................................52
Section 8.12 Merger, Conversion, Consolidation or Succession to Business of Trustee..............................53
Section 8.13 Preferential Collection of Claims against Company...................................................54
Section 8.14 Appointment of Authenticating Agent.................................................................54
Section 8.15 Trustee Not Fiduciary for Holders of Senior Indebtedness............................................55
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Securityholders..........................................56
Section 9.02 Supplemental Indentures With Consent of Securityholders.............................................57
Section 9.03 Execution of Supplemental Indentures................................................................58
Section 9.04 Effect of Supplemental Indentures...................................................................59
Section 9.05 Conformity with Trust Indenture Act.................................................................59
Section 9.06 Reference in Securities to Supplemental Indentures..................................................59
ARTICLE X.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 10.01 Company May Consolidate, etc., Only on Certain Terms...............................................59
Section 10.02 Successor Corporation Substituted..................................................................60
ARTICLE XI.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture............................................................60
Section 11.02 Application of Trust Money or Property.............................................................62
ARTICLE XII.
[Conversion of Securities]
Section 12.01 Conversion Privilege...............................................................................62
Section 12.02 Exercise of Conversion Privilege...................................................................62
Section 12.03 Fractional Shares..................................................................................63
Section 12.04 Adjustment of Conversion Price.....................................................................63
Section 12.05 Notice of Adjustments of Conversion Price..........................................................66
Section 12.06 Notice of Certain Corporate Action.................................................................66
Section 12.07 Company to Reserve Common Stock....................................................................67
Section 12.08 Taxes on Conversions...............................................................................67
Section 12.09 Covenant as to Common Stock........................................................................67
Section 12.10 Cancellation of Converted Securities...............................................................67
Section 12.11 Provisions in Case of Consolidation, Merger or Sale of Assets......................................67
ARTICLE XIII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 13.01 Exemption from Individual Liability................................................................68
ARTICLE XIV.
SINKING FUNDS
Section 14.01 Applicability of Article...........................................................................69
Section 14.02 Satisfaction of Sinking Fund Payments with Securities..............................................69
Section 14.03 Redemption of Securities for Sinking Fund..........................................................69
ARTICLE XV.
SUBORDINATION
Section 15.01 Agreement to Subordinate...........................................................................70
Section 15.02 Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities.............70
Section 15.03 Payments on Securities Prohibited During Event of Default Under Senior Indebtedness................73
Section 15.04 Reserved...........................................................................................73
Section 15.05 Authorization of Holders to Trustee to Effect Subordination........................................73
Section 15.06 Notice to Trustee..................................................................................73
Section 15.07 Right of Trustee to Hold Senior Indebtedness.......................................................74
Section 15.08 Not to Prevent Defaults or Events of Default.......................................................74
Section 15.09 Trustee Compensation, Etc. Not Prejudiced..........................................................74
ARTICLE XVI.
MISCELLANEOUS
Section 16.01 Counterparts.......................................................................................75
THIS INDENTURE is dated as of [ ] between COMMERCE BANCORP, INC., a
corporation duly organized and existing under the laws of the State of New
Jersey (hereinafter called the "Company"), having its principal executive office
at 0000 Xxxxx 00 Xxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000-0000 and THE BANK OF NEW
YORK, a New York banking corporation, as trustee (hereinafter called the
"Trustee"), having its principal corporate trust office located in New York
City.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its
[unsecured] subordinated debentures, notes or other evidence of indebtedness to
be issued in one or more series (hereinafter called the "Securities") as
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture;
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed by the
Company and by the Trustee, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted
at the date of such computation; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Eight, are defined in that
Article.
1
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote, 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person, and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Authenticating Agent" means any Person authorized to act on behalf of
the Trustee to authenticate Securities pursuant to Section 8.14.
"Authorized Newspaper" means a newspaper, in an official language of
the country of publication or in the English language, customarily published on
each Business Day whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Authorized Officer" means the Chairman of the Board, the Chief
Executive Officer, the President, any Vice Chairman of the Board, the Chief
Financial Officer, any Vice President, the Treasurer, the Secretary, the
Comptroller, any Assistant Comptroller, any Assistant Treasurer or any Assistant
Secretary of the Company.
"Bank" means (i) any institution organized under the laws of the United
States, any State of the United States, the District of Columbia, any territory
of the United States, Puerto Rico, Guam, American Samoa or the Virgin Islands
which (a) accepts deposits that the depositor has a legal right to withdraw on
demand, and (b) engages in the business of making commercial loans and (ii) any
trust company organized under any of the foregoing laws.
"Bearer Security" means any Security in the form established pursuant
to Section 2.02 which is payable to bearer.
"Board of Directors" means either the board of directors of the
Company, any duly authorized committee of that board, the Chairman, any Vice
Chairman, the President or any Vice President of the Company duly authorized by
the Board of Directors of the Company to take a specified action or make a
specified determination.
"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 of the Company and to be in full force and effect on the
date of such certification, and delivered to the appropriate Trustee.
2
"Business Day" means any day other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions are authorized
or obligated by law or regulation to close in The City of New York or any day
other than a day on which the Corporate Trust Office of the Trustee is closed
for business.
"Commission" means the Securities and Exchange Commission as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or if any time after the execution and delivery of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Common Stock" means any stock of any class of the Company that has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and that is not subject to redemption by the Company. Subject to the provisions
of Section 12.11, however, shares issuable on conversion of Securities shall
include only shares of the class designated as Common Stock of the Company as of
the date of this Indenture or shares of any class or classes resulting from any
reclassification or reclassifications thereof, which shares shall have no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which shares are not subject to redemption by the Company; provided,
however, that if at any time there shall be more than one such resulting class,
the shares of each such class then so issuable shall be substantially
proportionate to that number by which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until any successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" or "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its Chief Executive Officer, its President, a Vice Chairman, its Chief Financial
Officer or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Comptroller, an Assistant Comptroller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Corporate Trust Office" means the corporate trust office of the
Trustee located in New York, New York, at which at any particular time its
corporate trust business shall be principally administered, which office, at the
date of the execution of this Agreement, is located at The Bank of New York, 000
Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration.
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Default" has the meaning specified in Section 7.07.
3
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" shall mean, with respect to the Securities for which
Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, or another clearing
agency, or any successor registered as a clearing agency pursuant to Section 17A
of the Exchange Act or other applicable statute or regulation which, in each
case, shall be designated by the Company pursuant to Section 2.04(d).
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Date" has the meaning specified in Section 3.04.
"Global Security" or "Global Securities" means any Security or
Securities, as the case may be, in the form established pursuant to Section 2.02
evidencing all or a part of a series of Securities, issued to the Depositary for
such series or its nominee, and registered in the name of such Depositary or
nominee.
"Holder," when used with respect to any Security, means a
Securityholder.
"Indebtedness" of any Person as of any date means, without duplication,
all indebtedness of such Person in respect of borrowed money, including all
interest, fees and expenses owed in connection therewith (whether the recourse
of the lender is to the whole of the assets of such Person or only to a portion
thereof), indebtedness evidenced by notes, debentures, bonds or other
instruments of indebtedness, obligations for the reimbursement of any obligor on
any letter of credit, banker's acceptance or similar credit transaction, or
obligations under capitalized leases and equipment leases.
"Indenture" means with respect to each series of Securities for which a
Person is acting as Trustee, this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities for which such
Person is Trustee established as contemplated by Section 3.01 exclusive,
however, of any provisions or terms which relate solely to other series of
Securities for which such Person is not Trustee, regardless of when such terms
or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as such Trustee,
was not a party.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any series of
Securities, 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 or Maturity Consideration of such Security (or any
installment of principal or Maturity Consideration) becomes due and payable or
deliverable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
4
"Maturity Consideration" means securities, which may be issued by the
Company or another Person, or a combination of cash, such securities and/or
other property that may be delivered to Holders of Securities of any series to
satisfy the Company's obligations with regard to payment upon Maturity, or any
redemption or required repurchase or in connection with any exchange provisions,
or any interest payment.
"Commerce Bank" means Commerce Bank, N.A., a national banking
association.
"Officers' Certificate" means a certificate signed by two Authorized
Officers, one of whom must be the principal financial officer, and delivered to
the Trustee. Each such certificate shall contain the statements set forth in
Section 1.02.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding," when used with respect to a Security or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee
for such series or any Paying Agent in trust for the Holders of
such Securities, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii)such Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a protected purchaser (within the meaning
of Article 8 of the Uniform Commercial Code) in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of Original Issue Discount Securities that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to Section 7.02, and Securities
owned by
5
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which are registered in the Security Register
in the name of the Company, any obligor stated to be so obligated on such
Securities or any Affiliate of the Company or such obligor which is listed as
such on an Officers' Certificate delivered to the Trustee for that Series 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. The Trustee shall be entitled
to request and rely upon an Officers' Certificate as conclusive evidence
regarding the ownership or pledge of Securities by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay or
deliver the principal of (and premium, if any), Maturity Consideration or
interest on any Securities of that series on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, 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
5.02, the principal of (and premium, if any), Maturity Consideration and
interest on the Securities of that series are payable or deliverable as
specified in accordance with Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 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 Paying Agent" means the Paying Agent designated as such by
the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price or Maturity Consideration specified in such Security
at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 2.01 which is registered in the Security Register.
6
"Regular Record Date" for the interest payable on any Security on
any Interest Payment Date means the date, if any, specified in such Security as
the "Regular Record Date."
"Responsible Officer" means, when used with respect to the Trustee, an
officer within the Corporate Trust Administration department of the Corporate
Trust Office who has direct responsibility for the administration of this
Indenture and, with respect to a particular corporate trust matter, any other
officer of such Trustee to whom such corporate trust matter is referred because
of his knowledge of and familiarity with the particular subject.
"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" means, in the case of a Registered Security, the
Person in whose name the Security is registered in the Security Register and, in
the case of a Bearer Security (or any temporary Global Security in bearer form),
the bearer thereof and, when used with respect to any coupon, the bearer
thereof.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" and "Co-Security Registrar" have the respective
meanings specified in Section 3.05.
"Senior Indebtedness" means the principal of, premium, if any, and
interest (including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) on:
(i) all indebtedness, obligations and other liabilities (contingent or
otherwise) of the Company for borrowed money (including obligations of the
Company in respect of overdrafts, foreign exchange contracts, currency exchange
agreements, interest rate protection agreements, and any loans or advances from
banks, whether or not evidenced by notes or similar instruments) or evidenced by
bonds, debentures, notes or other instruments for the payment of money, or
indebtedness incurred in connection with the acquisition of any properties or
assets (whether or not the recourse of the lender is to the whole of the assets
of the Company or to only a portion thereof), other than any account payable or
other accrued current liability or obligation to trade creditors incurred in the
ordinary course of business;
(ii) all obligations and liabilities (contingent or otherwise) in
respect of leases of the Company required or permitted, in conformity with
generally accepted accounting principles, to be accounted for as capitalized
lease obligations on the balance sheet of the Company;
(iii) all direct or indirect guaranties or similar agreements by the
Company in respect of, and obligations or liabilities (contingent or otherwise)
of the Company to purchase or otherwise acquire or otherwise assure a creditor
against loss in respect of, indebtedness, obligations or liabilities of another
Person of the kind described in clauses (i) and (ii);
(iv) any and all amendments, renewals, extensions and refundings of any
indebtedness, obligation or liability of the kind described in clauses (i)
through (iii).
7
"Senior Indebtedness" does not include:
(i) any indebtedness in which the instrument or instruments evidencing
or securing the same or pursuant to which the same is outstanding, or in any
amendment, renewal, extension or refunding of such instrument or instruments, it
is expressly provided that such indebtedness shall not be senior in right of
payment to the Securities or expressly provides that such Indebtedness is pari
passu or junior to the Securities; or
(ii) trade accounts payable in the ordinary course of business.
"Special Record Date" for the payment of any Defaulted Interest (as
defined in Section 3.07) means the date fixed by the Trustee pursuant to Section
3.07.
"Stated Maturity" when used with respect to any Security or any
installment of principal, Maturity Consideration thereof or interest thereon,
means the date specified in such Security or a coupon representing such
installment of interest as the fixed date on which the principal or Maturity
Consideration of such Security, or such installment of principal, Maturity
Consideration or interest, is due and payable or deliverable.
"Subsidiary" means a Corporation, more than 50% of the Voting Stock of
which is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries or by the Company and one or more other Subsidiaries.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which Securities are not traded on the applicable
securities exchange or in the applicable securities market.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
the securities of that series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, as in force at the date as
of which this instrument was executed, except as provided in Section 9.05.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"Vice President," when used with respect to the Company or a Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
Board of Directors, managers or trustees
8
of such corporation (irrespective of whether or not at the time stock of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency).
Section 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent
(including any covenants, compliance with which constitutes a condition
precedent), if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel that such action is authorized or permitted under this
Indenture and that all such conditions precedent (including any covenants,
compliance with which constitutes a condition precedent), if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 5.10) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to
9
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04 Acts of Securityholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or
taken by Securityholders of any series may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee, and,
where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act"
of the Securityholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 8.01) conclusive in favor
of the Trustee and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness
of such execution or by the certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution
is by or on behalf of any legal entity other than an individual,
such certificate or affidavit shall also constitute proof of the
authority of the Person executing the same. The fact and date of
the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be provided in any
other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by
the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or
other depositary, wherever situated, if such certificate shall be
deemed by the Trustee to be satisfactory, showing that at the
date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Security, if such
certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect
of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some
10
other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding.
(e) The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal
amount and serial numbers of Bearer Securities held by the Person
so executing such instrument or writing and the date of holding
the same may also be proved in any other manner which the Trustee
deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in
this Section.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof or the Holder of any
Predecessor Security, in respect of any action taken, suffered or
omitted by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such
Security.
(g) The Company may, but shall not be obligated to, set a record date
for purposes of determining the identity of Holders entitled to
vote or consent to any action by vote or consent authorized or
permitted under this Indenture, which record date shall be the
later of 10 days prior to the first solicitation of such consent
or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 6.01 of this Indenture prior to such
solicitation. If a record date is fixed, those persons who were
Holders of Securities at such record date (or their duly
designated proxies), and only those persons, shall be entitled to
take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to
be Holders after such record date. No such vote or consent shall
be valid or effective for more than 120 days after such record
date.
Section 1.05 Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Securityholders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee and received at its Corporate Trust Office; or
(b) the Company by any Securityholder or by the Trustee shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class, postage prepaid, to the Company
addressed to the attention of its Secretary at the address of its principal
office specified in the first paragraph of this Indenture, or at any other
address previously furnished in writing to the Trustee by the Company.
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Section 1.06 Notices to Securityholders; Waiver.
Where this Indenture or any Security provides for notice to Holders of
any series of Securities of any event:
(a) Such notice shall be sufficiently given (unless otherwise herein,
or in such Security, expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder of a registered Security affected by such event,
at his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice.
(b) Such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of New York and
of such series are then listed on the Luxembourg Stock Exchange and such stock
exchange shall so require, in Luxembourg and, if the Security of such series are
then listed on any other stock exchange and such stock exchange shall so
require, in any other required city outside the United States or, if not
practicable, elsewhere on a Business Day at least twice, the first such
publication to be not earlier than the earliest date, and not later than the
latest date, prescribed for the giving of such notice; it being understood that
the Company shall notify the Trustee of any of the foregoing requirements a
reasonable amount of time prior to the date on which such notice must be given
(but in no event less than five Business Days).
In case by reason of the suspension of regular mail service or by
reason of any other case it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case where notice to Holders of Registered
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 Registered
Security shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice by publication
to Holders of Bearer Securities given as provided above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
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. Such waivers of notice by Securityholders 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.
12
Section 1.07 Conflict with Trust Indenture Act.
If and to the extent that any provision hereof limits, qualifies or
conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of
the Trust Indenture Act through operation of Section 318(c) thereof, such
imposed duties shall control.
Section 1.08 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.09 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the Holders and, to the extent provided in Article Fourteen hereof,
the holders of Senior Indebtedness, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 1.12 Legal Holidays.
In any case where any Interest Payment Date, Stated Maturity or
Redemption Date of any Security, any date on which any Defaulted Interest is
proposed to be paid or delivered or the last date on which a Holder has the
right to convert his Securities shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provisions of the Securities or this
Indenture) payment or delivery of the principal of (and premium, if any),
Maturity Consideration or interest or conversion of the Securities need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day or such other Business Day as may be specified in an
Officers' Certificate delivered to the appropriate Trustee pursuant to Section
3.01 hereof, at such Place of Payment with the same force and effect as if made
on the Interest Payment Date, Stated Maturity, Redemption Date, last day for
conversion of the Securities or on the date on which Defaulted Interest is
proposed to be paid or delivered, and, if such payment or delivery is made, no
interest shall accrue on such payment or delivery for the period from and after
any such Interest Payment Date, Stated Maturity, Redemption Date, last day for
conversion or on the date on which Defaulted Interest is proposed to be paid or
delivered, as the case may be.
13
Section 1.13 Governing Law.
This Indenture and the Securities shall be construed in accordance with
and governed by the laws of the State of New York without regard to conflicts of
laws principles thereof.
ARTICLE II.
SECURITY FORMS
Section 2.01 Forms Generally.
The Securities of each series shall be in such form as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary and delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 3.03 for the authentication and
delivery of such Securities. If temporary Securities of any series are issued as
Global Securities as permitted by Section 3.04, the form thereof also shall be
established as provided in the preceding sentence.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 3.01,
the Securities of a series shall be issuable solely in bearer form, or in both
registered and bearer form. Unless otherwise specified as contemplated by
Section 3.01, Securities in bearer form shall have interest coupons attached.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on a steel engraved border or on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 2.02 Form of Securities.
Each Security shall be in one of the forms approved from time to time
by or pursuant to a Board Resolution. Upon or prior to the delivery of a
Security in any such form to the Trustee for authentication, the Company shall
deliver to the Trustee the following:
14
(a) the Board Resolution by or pursuant to which such form of
Security has been approved, certified by the Secretary or an
Assistant Secretary of the Company;
(b) the Officers' Certificate required by Section 3.01 of this
Indenture;
(c) the Company Order required by Section 3.03 of this Indenture; and
(d) the Opinion of Counsel required by Section 3.03 of this
Indenture.
Section 2.03 Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the
within mentioned Indenture.
THE BANK OF NEW YORK, not in
its individual capacity, but
solely as Trustee
By:
-------------------------------------
Authorized Officer
Date:_________________________
ARTICLE III.
THE SECURITIES
Section 3.01 Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued up
to the aggregate principal amount of Securities from time to time authorized by
or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Board Resolution, and set forth
in an Officers' Certificate, reasonably acceptable to the Trustee, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(a) the title of the Securities, including CUSIP numbers, of the
series (which shall distinguish the Securities of the series from
all other Securities);
(b) the Trustee for the Securities of the series (which Trustee shall
be the Trustee named herein or a successor Trustee appointed in
accordance with the terms of this Indenture);
15
(c) 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 that series pursuant to this Article Three or
Sections 4.07 or 9.06);
(d) the date or dates on which the principal or Maturity
Consideration of the Securities of the series is payable or
deliverable;
(e) the rate or rates, or the method to be used in ascertaining the
rate or rates, at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest
shall be payable or deliverable and the Regular Record Date for
the interest payable or deliverable on any Interest Payment Date;
(f) the place or places where, subject to the provisions of Section
5.02, the principal of (and premium, if any), Maturity
Consideration and interest, if any, on Securities of the series
shall be payable or deliverable;
(g) the office or offices or agency where the Registered Securities
may be presented for registration of transfer or exchange and the
place or places where notices and demands to or upon the Company
in respect of the Securities of such series may be made;
(h) the period or periods within which, the price, prices or Maturity
Consideration 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;
(i) 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 and the
period or periods within which, the price or prices at which and
the terms and conditions upon which, Securities of such series
shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(j) the denominations in which Securities of the series shall be
issuable;
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be
payable or deliverable upon declaration of acceleration of the
Maturity thereof pursuant to Section 7.02;
(l) if the amount of payments of principal of (and premium, if any),
Maturity Consideration or interest, if any, on Securities of the
series may be determined with reference to an index based on a
coin or currency other than that in which the Securities are to
be payable or deliverable, the method or methods by which such
amounts shall be determined;
(m) the extent to which any of the Securities will be issuable as
temporary or permanent Global Securities, and the manner in which
any interest payable or deliverable on a temporary or permanent
Global Security shall be paid or delivered;
16
(n) any addition to or modification or deletion of any Event of
Default, Default or covenants of the Company with respect to the
Securities of the series, whether or not such Events of Default
or covenants are consistent with the Events of Default or
covenants set forth herein;
(o) any covenants solely for the benefit of the Securities of the
Series;
(p) the appointment of any Paying Agent or Agents for the Securities
of the Series;
(q) whether, and the terms and conditions relating to when the
Company may satisfy all or part of its obligations with regard to
payment or delivery upon Maturity, or any redemption or required
repurchase or in connection with any exchange provisions, or any
interest payment, by paying or delivering Maturity Consideration
to the Holders of the Securities;
(r) any additional obligation of the Company to be included as Senior
Indebtedness;
(s) any deletions from, modifications of or additions to the
subordination provisions set forth in Section 13 pertaining to
the Securities of the Series;
(t) the terms and conditions, if any, upon which Securities of the
Series will be convertible into shares of Common Stock; and
(u) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to such
Board Resolution and set forth in such Officers' Certificate or in any such
indenture supplemental hereto.
All Securities shall be subordinate and junior in right of payment to
the obligations of the Company to holders of Senior Indebtedness of the Company
as provided in Article Fourteen.
At the option of the Company, interest on the Securities of any series
that bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee for such series at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
Section 3.02 Denominations.
The Securities of each series shall be issuable in such form and
denominations as shall be specified as contemplated by Section 3.01. In the
absence of any specification with respect to the Securities of any series, the
Registered Securities of each series shall be issuable only as
17
Securities without coupons in minimum denominations of $[______] and any
integral multiple of $[______] in excess thereof and the Bearer Securities of
each series, if any, shall be issuable with coupons and in denominations of
$[______] and $[______].
Section 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President, one of its
Vice Chairmen or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signatures of any or all of these officers on the Securities may be manual or
facsimile. Coupons shall bear the facsimile signature of the Company's Chairman
of the Board, its Chief Executive Officer, its President, a Vice Chairman of the
Board, its Chief Financial Officer, one of its Executive Vice Presidents or the
Treasurer.
Securities and coupons 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, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities and such other documents as the Trustee may
reasonably request, and the Trustee shall, upon receipt of the Company Order,
authenticate and deliver such Securities as provided in this Indenture and not
otherwise.
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 8.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that,
(a) the form of such Securities has been established in conformity
with the provisions of this Indenture;
(b) the terms of such Securities have been established in conformity
with the provisions of this Indenture;
(c) all conditions precedent to the authentication and delivery of
such Securities have been complied with and that such Securities,
when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general
principles of equity;
18
(d) that all laws and requirements in respect of the execution and
delivery by the Company of the Securities have been complied with
and that authentication and delivery of the Securities by the
trustee will not violate the terms of the Indenture; and
(e) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee. The Trustee shall have the
right to decline to authenticate and deliver any Securities under this Section
if the Trustee, being advised by counsel, determines that such action may not
lawfully be taken or if the Trustee in good faith by its board of directors or
trustees, executive committee, or a trust committee of directors or trustees
and/or vice presidents shall determine that such action would expose the Trustee
to personal liability to existing holders.
Each Registered Security shall be dated the date of its authentication;
and unless otherwise specified as contemplated by Section 3.01, each Bearer
Security and any temporary Global Security referred to in Section 3.04 shall be
dated as of the date of issuance of such Security.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits under this Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.09 together with a written
statement (which need not comply with Section 1.02 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued or
sold by the Company, for all purposes of this Indenture, such Security shall be
deemed never to have been authenticated and delivered under this Indenture and
shall never be entitled to the benefits of this Indenture.
Section 3.04 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee for such series shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denominations, substantially of the tenor of the definitive Securities in lieu
of which they are issued in registered form or, if authorized, in bearer form
with one or more coupons or without coupons and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities. In the case of any series which may be issuable as Bearer
Securities, such temporary Securities may be Global Securities, representing
such of the Outstanding Securities of such series as shall be specified therein.
19
Except in the case of temporary Global Securities, each of which shall
be exchanged in accordance with the provisions of the following paragraph, if
temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of such
series of authorized denominations provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 3.03. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
Without unnecessary delay but in any event not later than five Business
Days prior to the date specified in, or determined pursuant to the terms of, any
such temporary Global Security as the Exchange Date (the "Exchange Date"), the
Company shall deliver to the Trustee, or, if the Trustee appoints an
Authenticating Agent pursuant to Section 8.14, to any such Authenticating Agent,
definitive Securities in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. Unless
otherwise specified as contemplated by Section 3.01, such definitive Securities
shall be in the form of Bearer Securities or Registered Securities, or any
combination thereof, as may be specified by the Company to the Trustee or any
such Authenticating Agent, as may be appropriate. On or after the Exchange Date,
such temporary Global Security shall be surrendered by the Common Depositary to
the Trustee or any such Authenticating Agent, 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 to the Common Depositary and the Trustee or any such
Authenticating Agent shall authenticate and deliver, in exchange for each
portion of such temporary Global Securities, an equal aggregate principal amount
of definitive Securities of the same series, of authorized denominations and of
like tenor as the portion of such temporary Global Security to be exchanged,
which, except as otherwise specified as contemplated by Section 3.01, shall be
in the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof, in a writing
delivered to the Trustee; provided, however, that, unless otherwise specified in
such temporary Global Security, upon such presentation by the Common Depositary,
such temporary Global Security is accompanied by a certificate dated the
Exchange Date or a subsequent date; and provided, further, that a definitive
Bearer Security shall be delivered in exchange for a portion of a temporary
Global Security only in compliance with the conditions set forth in Section
3.03.
Upon any exchange of a portion of any such temporary Global Security,
the Trustee or any such Authenticating Agent or the Depositary, as the case may
be, shall indicate upon such temporary Global Security, the amount of such
exchange to reflect the reduction of the principal amount evidenced thereby,
whereupon its remaining principal amount shall be reduced for all purposes by
the amount so exchanged. Until so exchanged in full, such temporary Global
20
Security shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series authenticated and delivered
hereunder.
Section 3.05 Registration, Registration of Transfer and Exchange.
With respect to Registered Securities, the Company shall keep or cause
to be kept at the office of the Security Registrar designated pursuant to this
Section 3.05 or Section 5.02 a register (being the combined register of the
Security Registrar and all Co-Security Registrars and herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and the registration of transfers of Securities and
the Company shall appoint a Security Registrar, and any Co-Security Registrar as
may be appropriate, to keep the Security Register. The Trustee is hereby
initially appointed Security Registrar with respect to the series of Securities
for which it is acting as Trustee. Such Security Register shall be in written
form or in any other form capable of being converted into written form within a
reasonable time. At all reasonable times the information contained in such
Security Register shall be available for inspection by the Trustee at the office
of the Security Registrar. In the event that any Registered Securities issued
hereunder have The City of New York as a Place of Payment, the Company shall
appoint either a Security Registrar or Co-Security Registrar located in The City
of New York.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company in a Place of Payment, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series of any authorized denominations and of a like aggregate
principal amount and Stated Maturity.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and Stated Maturity, 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
Securityholder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
Bearer Securities may not be exchanged for Bearer Securities of other authorized
denominations.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default appertaining thereto. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless.
21
If thereafter the Holder of such Security shall surrender to any Paying Agent
any such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment from the
Company. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such Paying Agent on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or agency
on the related date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such Interest Payment Date
or proposed date for payment, as the case may be.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be 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, the Security Registrar or the
Co-Security Registrar for the Series) be duly endorsed or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the Security
Registrar or the Co-Security Registrar for the series duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Securities) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.04, 4.07, or 9.06 not involving any transfer.
None of the Company, the Security Registrar nor any Co-Security
Registrar shall be required (i) to issue, register the transfer of or exchange
any Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 4.03 and ending
at the close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption of Registered Securities of such series so selected for redemption,
or (B) if Securities of the series are issuable as Bearer Securities, the day of
the first publication of the relevant notice of redemption or, if Securities of
the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer or exchange of any Securities so selected for redemption
in whole or in part.
22
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security or Security with a mutilated coupon,
surrendered to the Trustee or the Security Registrar, or if the Company, the
Trustee and the Security Registrar receive evidence to their satisfaction of the
destruction, loss or theft of any Security or coupon, and (ii) there is
delivered to the Company, the Trustee and the Security Registrar 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, the Trustee or the Security Registrar that
such Security has been acquired by a protected purchaser (within the meaning of
Article 8 of the Uniform Commercial Code), the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
Stated Maturity and of like tenor and principal amount, bearing a number not
contemporaneously outstanding and, if applicable, with coupons corresponding to
the coupons appertaining thereto.
In case any such mutilated, destroyed, lost or stolen Security or
coupon 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 or deliver
the Maturity Consideration deliverable thereon; provided, however, that payment
of principal of (and premium, if any), Maturity Consideration and any interest
on Bearer Securities shall be payable only at an office or agency located
outside the United States, and, in the case of interest, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security with a destroyed, lost or stolen coupons, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, 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 or coupons.
Section 3.07 Payment of Interest; Interest Rights Preserved.
Unless otherwise provided, as contemplated by Section 3.01, interest on
any Registered Security which is payable or deliverable, and is punctually paid,
delivered or duly provided for, on any Interest Payment Date shall unless
otherwise provided in such Security be paid or delivered to the Person in whose
name that Security (or one or more Predecessor Securities) is
23
registered at the close of business on the Regular Record Date for such
interest; provided, however, that in the case of a Registered Security
originally issued between a Regular Record Date and the Interest Payment Date or
on an Interest Payment Date relating to such Regular Record Date, interest for
the period beginning on the date of issue and ending on such Interest Payment
Date shall be paid or delivered on the next succeeding Interest Payment Date to
the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
with respect to such succeeding Interest Payment Date. Unless otherwise
specified as contemplated by Section 3.01, in case a Bearer Security of any
series is surrendered in exchange for a Registered Security of such series after
the close of business (at an office or agency referred to in Section 3.05) on
any Regular Record Date and before the opening of business (at such office or
agency) on the next succeeding Interest Payment Date, such Bearer Security shall
be surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable or deliverable on such Interest Payment Date in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable or deliverable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Any interest on any Registered Security which is payable or
deliverable, but is not punctually paid, delivered or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease
to be payable or deliverable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid or
delivered by the Company, at its election in each case, as provided in clause
(a) or clause (b) below.
(a) The Company may elect to make payment or delivery of any
Defaulted Interest to the Persons in whose names any such
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment or delivery 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 or delivered on each
Registered Security of such series and the date of the proposed
payment or delivery, and at the same time the Company shall
deposit with the Trustee an amount of money or other property
equal to the aggregate amount proposed to be paid or delivered 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 or delivery, such money or other property
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this clause.
Thereupon the Trustee shall fix a Special Record Date for the
payment or delivery of such Defaulted Interest which shall be not
more than 15 days nor less than 10 days prior to the date of the
proposed payment or delivery and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment or
delivery. 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 or delivery
of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class, postage prepaid, to each Holder of
Securities of such series 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 or delivery of such
Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be
24
paid or delivered to the Persons in whose names such Registered
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable or deliverable
pursuant to the following clause (b). In case a Bearer Security
of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security
of such series after the close of business at such office or
agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date of
payment or delivery of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such proposed
date for payment or delivery and Defaulted Interest will not be
payable or deliverable on such proposed date for payment or
delivery in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of this
Indenture.
(b) The Company may make payment or delivery of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Securities, with respect to which there
exists such default, 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 or delivery
pursuant to this clause, such payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the right to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security that is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security that Maturity of which is prior to such Interest Payment Date), if
Stated Maturity is on such Interest Payment Date, the interest shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security that is converted, the interest thereon shall not be payable if
Stated Maturity is after the date of conversion of such Security.
Section 3.08 Persons Deemed Owners.
Title to any Bearer Security, any coupons appertaining thereto and any
temporary Global Security in bearer form shall pass by delivery.
Prior to due presentment of a Security of any series for registration
of transfer of any Registered Security, 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
or delivery of principal of (and premium, if any), Maturity Consideration in
respect of, and (subject to Section 3.07) interest on such Security, and for all
other purposes whatsoever, whether or not such Security is overdue, and neither
the Company,
25
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon, as the
case may be, as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 3.09 Cancellation.
All Securities and coupons surrendered for payment, registration of
transfer, exchange, conversion, repayment, redemption or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee. All Securities so delivered or surrendered directly
to the Trustee for any such purpose, shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture or such Securities. All canceled
Securities or coupons held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures and the Trustee shall deliver a
certificate of such disposition to the Company, if requested by the Company in
writing.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
Section 3.11 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
26
ARTICLE IV.
REDEMPTION OF SECURITIES
Section 4.01 Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and, except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series, in accordance with this Article.
Section 4.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities redeemable at the
option of the Company shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least [60] days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount or amount of Maturity Consideration of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 4.03 Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than [60] days
prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series not previously called for redemption, on a pro rata basis, by lot or
by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions of the principal amount or
issue price of Securities of such series or a denomination equal to or larger
than the minimum authorized denomination for Securities of such series. Unless
otherwise provided by the terms of the Securities of any series the
denominations of the Securities so selected for partial redemption shall be, in
the case of Registered Securities, equal in value to $[______] or an integral
multiple of $[______] in excess thereof, or, in the case of Bearer Securities,
equal to $[______] or $[______], and the principal amount of any such Securities
which remains outstanding shall not be less than the minimum authorized
denomination for Securities of such series.
The Trustee shall promptly notify the Company, the Trustee and the
Co-Security Registrar, if any, in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the
principal amount or Maturity Consideration thereof to be redeemed.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities that have
been converted during a selection of Securities to be redeemed shall be treated
by the Trustee as Outstanding for the purpose of such selection.
27
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal or Maturity Consideration of such Security which has
been or is to be redeemed.
Section 4.04 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than [30] nor more than [60] days prior to the
Redemption Date, to each Holder of Securities to be redeemed at his address
appearing in the Security Register or, in the Bearer Securities, in the manner
provided in Section 1.06.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(d) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed, and that
interest, if any, thereon shall cease to accrue on and after said
date;
(e) if applicable, the Conversion Price, the date on which the right
to convert the principal of the Securities to be redeemed will
terminate and the place or places where such Securities may be
surrendered for conversion;
(f) the place or places where such Securities, together in the case
of Bearer Securities with all remaining coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price; and
(g) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, on Company Request, by the Trustee
in the name and at the expense of the Company. The notice if mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. In any case, a failure to give
such notice by mail or any defect in the notice to the Holder of any Security
designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security.
28
Section 4.05 Deposit of Redemption Price.
Prior to the opening of business on any Redemption Date, the Company
shall deposit or cause to be deposited with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 5.03) an amount of money sufficient to pay the
Redemption Price of, and (unless the Redemption Date shall be an Interest
Payment Date) interest accrued to the Redemption Date on, all Securities or
portions thereof that are to be redeemed on that date, other than any Securities
called for redemption on that date that have been converted prior to the date of
such deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to the right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 3.07) be paid to the Company upon Company Request or,
if then held by the Company, shall be discharged from such trust.
Section 4.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest and the coupons for such interest appertaining to
any Bearer Securities so to be redeemed, except to the extent provided below,
shall be void. Upon surrender of any such Securities for redemption in
accordance with said notice, such Securities shall be paid by the Company at the
Redemption Price; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of coupons for such interest. Installments of
interest on Registered 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 on the close of business on the
relevant Regular Record Dates according to their terms and the provisions of
Section 3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted from the
Company; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of those coupons.
29
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by such
Security, or as otherwise provided in such Security.
Section 4.07 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 in a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder of such Security or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge to the Holder, a
new Security or Securities of the same series and Stated Maturity of any
authorized denominations as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
Section 4.08 Redemption Suspended During Event of Default.
The Trustee shall not redeem any Securities (unless all Securities then
Outstanding are to be redeemed) or commence the giving of any notice of
redemption of Securities during the continuance of any Event of Default known to
the Trustee, except that where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall, subject to the
provisions of Section 14.03, redeem such Securities, provided funds are
deposited with it for such purpose. Subject to the rights of the holders of
Senior Indebtedness, except as aforesaid, any moneys theretofore or thereafter
received by the Trustee shall, during the continuance of such Event of Default,
be held in trust for the benefit of the Securityholders and applied in the
manner set forth in Section 7.06; provided, however, that in case such Event of
Default shall have been waived as provided herein or otherwise cured, such
moneys shall thereafter be held and applied in accordance with the provisions of
this Article.
ARTICLE V.
COVENANTS
Section 5.01 Payment of Principal, Premium, if any, the Maturity Consideration
and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or deliver the principal of (and
premium, if any), Maturity Consideration and interest (if any) on the Securities
of such series and any additional amounts described in Section 5.04 in
accordance with the terms of the Securities of such series, any coupons
appertaining thereto and this Indenture.
Section 5.02 Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for any series of Securities
an office or agency where
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Securities of that series may be presented or surrendered for payment or
delivered for Maturity Consideration, where Securities of that series may be
surrendered for registration of transfer or exchange, where Securities may be
surrendered for conversion and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location, and
of any change in the location, of such office or agency. If Securities of a
series may be issuable as Bearer Securities, the Company will maintain an office
or agency where any Securities of that series may be presented or surrendered
for payment (A) in the Borough of Manhattan, The City of New York, or (B) where
any Securities of that series may be surrendered for exchange and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of any such 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, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee,
except that the Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Bearer Securities of that series pursuant to Section 5.04) at
the place specified for the purpose as contemplated by Section 3.01, and the
Company hereby appoints the Trustee as its agent to receive such respective
presentations, surrenders, notices and demands (other than those with respect to
the Bearer Securities). Notwithstanding any other provisions, to the contrary,
the Company at its option may make payment of principal, (and premium if any)
and interest with respect to Registered Securities by check mailed to the
address of the Person entitled thereto, as such address appears on the registry
books of the Company.
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 of such purposes specified above in this Section
and may from time to time rescind such designations.
Section 5.03 Money or Other Property for Security Payments and Deliveries to be
Held in Trust.
If the Company shall at any time act as its own Paying Agent for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any), Maturity Consideration or interest on any of the
Securities of such series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum or other property sufficient to pay or deliver
the principal (and premium, if any), Maturity Consideration or interest so
becoming due until such sums or other property shall be paid or delivered to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act. If the Company chooses to
act as its own Paying Agent, the Company shall notify the Trustee 15 Business
Days prior to such action.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to the opening of business on each due date
of the principal of (and premium, if any), Maturity Consideration or interest on
any Securities of such series, deposit with a Paying Agent a sum or other
property sufficient to pay or deliver the principal (and premium, if any),
Maturity Consideration or interest so becoming due, such sum or other
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property to be held in trust for the benefit of the Persons entitled to such
principal (and premium, if any), Maturity Consideration or interest, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee subject to the provisions
of this Section, that such Paying Agent will:
(a) hold all sums or other property held by it for the payment of or
delivery of the principal (and premium, if any), Maturity
Consideration or interest on Securities of such series in trust
for the benefit of the Persons entitled thereto until such sums
or other property shall be paid or delivered to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making
of any payment or delivery of principal (and premium, if any),
Maturity Consideration or interest on the Securities of such
series; and
(c) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay or deliver to the
Trustee all sums or other property so held in trust by such
Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay or
deliver, or by Company Order direct any Paying Agent to pay or deliver, to the
Trustee all sums or other property held in trust by the Company or such Paying
Agent, such sums or other property to be held by the Trustee upon the same
trusts as those upon which such sums or other property were held by the Company
or such Paying Agent; and upon such payment or delivery by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money or other property.
Any money or other property deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment or delivery of the
principal of (and premium, if any), Maturity Consideration or interest in any
Security of any series and remaining unclaimed for two years after such
principal (and premium, if any), Maturity Consideration or interest has become
due and payable or deliverable shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be paid
or delivered to the Company on Company request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment or delivery thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money or other property, and all liability of
the Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment or delivery, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment, notice that such
money or other property remains unclaimed and that, after a date specified
therein, which shall not be less than [30] days from the date of such
publication, any unclaimed balance of such money or other property then
remaining will be repaid or delivered to the Company.
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Section 5.04 Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of any series or any
coupon appertaining thereto additional amounts as provided therein. Whenever in
this Indenture there is mentioned, in any context, the payment of the principal
of (or premium, if any) or interest on, or in respect to, any Security of any
series or payment of any related coupon or the net proceeds received on the sale
or exchange of any Securities of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
If the Securities of a series provided for the payment of additional
amounts, at least 15 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment or delivery of
principal (and premium, if any) or Maturity Consideration is made), and at least
15 days prior to each date of payment or delivery of principal of (and premium,
if any) or Maturity Consideration or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment or delivery of principal of (and premium, if any) or Maturity
Consideration or interest on the Securities of that series shall be made to
Holders of Securities of that series or any related coupons who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
or deliveries to such Holders of Securities or coupons and the Company will pay
to the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against any loss, liability or expense reasonably
incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
Section 5.05 Corporate Existence.
Subject to Article Ten, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, and the rights (charter and statutory) and franchises of the Company;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders
of Securities.
33
Section 5.06 Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, commencing with the first calendar year following the
issuance of securities of any series under this Indenture, a brief certificate,
which need not comply with Section 1.02, signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, covering the period from the date of issuance of such Securities to
the end of the calendar year in which such Securities were issued, in the case
of the first such certificate, and covering the preceding calendar year, in the
case of each subsequent certificate, stating, as to each signer thereof, that:
(a) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her
supervision, and
(b) to the best of his or her knowledge, based on such review, (i)
the Company has complied with all conditions and covenants on its
part contained in this Indenture throughout such year, or, if
there has been a Default by the Company in the performance,
observance or fulfillment of any such condition or covenant,
specifying each such Default known to him or her and the nature
and status thereof, and (ii) no event has occurred and is
continuing which is, or after notice or lapse of time or both
would become, an Event of Default, or, if such an event has
occurred and is continuing, specifying each such event known to
him or her and the nature and status thereof.
For the purpose of this Section 5.06, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
Section 5.07 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 5.05 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least 50% in principal amount, or if such Securities are not payable at
Maturity for a fixed principal amount, 50% of the aggregate issue price of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company in
respect of any such term, provision or condition shall remain in full force and
effect.
Section 5.08 Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
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Section 5.09 Statement by Officers as to Default.
The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
ARTICLE VI.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 6.01 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee for
each series,
(a) semiannually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require,
containing the names and addresses of the holders of Registered
Securities as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
[30] days after receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15
days prior to the time such list is requested to be -- furnished,
except that no such lists need to be furnished so long as the Trustee is in
possession thereof by reason of its acting as Security Registrar for such
series.
Section 6.02 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section
6.01 and the names and addresses of Holders of Securities
received by the Trustee in its capacity as the Security Registrar
or Co-Security Registrar, if so acting. The Trustee may destroy
any list furnished to it as provided in Section 6.01 upon receipt
of a new list so furnished.
(b) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant
has owned a Security of such series for a period of at least six
months preceding the date of such application, and such
application states that the applicants desire to communicate with
other Holders of Securities of such series or with the Holders of
all Securities with respect to their rights under this Indenture
or under such Securities and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after
the receipt of such application, at its election, either
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 6.02(a), or
35
(2) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as
the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in
accordance with Section 6.02(a), and as to the approximate
cost of mailing such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or all Holders of Securities,
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 6.02(a), a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless, within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of such series or all Securities, as the case may be, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders of Securities with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise, the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information
as to the names and addresses of the Holders of Securities in
accordance with Section 6.02(b), regardless of the source from
which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material
pursuant to a request made under Section 6.02(b).
Section 6.03 Reports by Trustee.
(a) The term "reporting date", as used in this Section, shall be
[_______________] of each year, commencing with the later of or
the first [_______________] after the first issuance of
Securities of a series for which the Trustee is acting as Trustee
pursuant to this Indenture. Within [60] days after the reporting
date in each year, the Trustee shall transmit by mail to all
Holders of Registered Securities as provided in Section 313(c) of
the Trust Indenture Act, as their names and addresses appear in
the Security Register, a brief report dated as of such reporting
date if required by Section 313(a) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with
36
the Commission and with the Company. The Company will promptly
notify the Trustee when the Securities are listed on any stock
exchange and of any delisting thereof.
Section 6.04 Reports by the Company.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, or, if the Company
is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of
security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and
regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(c) transmit by all to Holders of Securities, as their names and
addresses appear in the Security Register, within [30] days after
the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed -- by the
Company pursuant to Paragraphs (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time
by the Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE VII.
REMEDIES
Section 7.01 Events of Default.
"Event of Default," with respect to any series of Securities, wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment,
37
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture under which such series of Securities is issued or in the form of
Security for such series:
(a) the entry of a decree or order by a court having jurisdiction in
the premises granting relief in respect of the Company in an
involuntary case under the Federal Bankruptcy Code, adjudging the
Company a bankrupt, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under the Federal Bankruptcy Code or
any other applicable federal or state bankruptcy, insolvency or
other similar law, or appointing a receiver, liquidator,
custodian, assignee, trustee, sequestrator (or other similar
official) of the Company or of substantially all of its
properties, or ordering the winding up or liquidation of its
affairs under any such law, and the continuance of any such
decree or order unstayed and in effect for a period of [60]
consecutive days; or
(b) the institution by the Company of proceedings to be adjudicated a
bankrupt, or the consent by the Company to the institution of
bankruptcy proceedings against it, or the filing by the Company
of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other applicable
federal or state bankruptcy, insolvency or other similar law, or
the consent by the Company to the filing of any such petitioner
to the appointment of a receiver, liquidator, custodian,
assignee, trustee, sequestrator (or other similar official) of
the Company, or of substantially all of its respective
properties, under any such law; or
(c) any other Event of Default provided with respect to Securities of
that series.
Section 7.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any series of Securities for
which there are Securities Outstanding occurs and is continuing, then, and in
every such case, the Trustee or the Holders of not less than 25% in principal
amount or, if such Securities are not payable at Maturity for a fixed principal
amount, 25% of the aggregate issue price of the Outstanding Securities of such
series may declare the principal amount or Maturity Consideration of all of the
Securities of such series (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) to be immediately due and payable or
deliverable, by a notice in writing to the Company (and to the Trustee if given
by Securityholders), and upon any such declaration the same shall become
immediately due and payable or deliverable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money or other property due or deliverable has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount or, if such Securities are not payable at Maturity for a
fixed principal amount, the aggregate issue price of the Outstanding Securities
of such series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if,
38
(a) the Company has paid or deposited with, or delivered to, the
Trustee a sum or other property sufficient to pay:
(1) all overdue installments of interest on all Securities
of such series,
(2) the principal of (and premium, if any), or Maturity
Consideration of any Securities of that series which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor by the terms of the Securities of such
series;
(3) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate
or rates prescribed therefor by the terms of the Securities
of such series, and
(4) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, the Security Registrar, Co-Security
Registrar, any Paying Agent, and their agents and counsel;
and
(b) all other Defaults with respect to Securities of that
series, other than the non-payment of the principal of, or
non-delivery of the Maturity Consideration of, Securities of
that series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in
Section 7.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 7.03 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if,
(a) default is made in the payment of any installment of
interest on any Security of any series when such interest
becomes due and payable and such default continues for a
period of [30] days, or --
(b) default is made in the payment or delivery of the principal
of (or premium, if any on), or the delivery of the Maturity
Consideration of any Security of any series at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay or deliver to it, for the
benefit of the Holder of any such Security or coupon appertaining thereto, if
any, the whole amount or other property then due and payable or deliverable on
any such Security or coupon for principal (and premium, if any), Maturity
Consideration and interest, with interest on the overdue principal (and premium,
if any), Maturity Consideration and (to the extent that payment of such interest
shall be lawful) upon overdue installments of interest, at the rate or rates
prescribed therefor by the terms of any such Security; and, in addition thereto,
such further amount as shall be sufficient to cover the reasonable costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 8.07.
39
If the Company fails to pay or deliver such amounts and/or other
consideration forthwith upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the
collection of the sums or other property so due and unpaid or not delivered, and
may prosecute such proceeding to judgment or final decree, and may enforce the
same against the Company or any other obligor upon such Securities and collect
the moneys or other property adjudged or decreed to be payable or deliverable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If a Default with respect to any series of Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 7.04 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, judgment, 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 or Maturity Consideration of the
Securities shall then be due and payable or deliverable 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 (and
premium, if any), Maturity Consideration or interest) shall be entitled and
empowered (but shall have no duty), by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of principal (and
premium, if any), Maturity Consideration and interest owing and unpaid
or undelivered in respect of the Securities of each series 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 amounts due the Trustee
under Section 8.07) and of the Securityholders 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,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Securityholder to make such payments or deliveries to the Trustee, and in
the event that the Trustee shall consent to the making of such payments or
deliveries directly to the Securityholders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization,
40
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 or coupon in any such proceeding.
Section 7.05 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or under the
Securities of any series or coupons (if any) appertaining thereto, may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities of such series or coupons appertaining thereto or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 8.07,
be for the ratable benefit of the Holders of the Securities of such series and
coupons appertaining thereto in respect of which such judgment has been
recovered.
Section 7.06 Application of Money or Other Property Collected.
Subject to the rights of holders of Senior Indebtedness, any money or
other property collected by the Trustee with respect to a series of Securities
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee, and, in case of the distribution of such money or
other property on account of principal (or premium, if any), Maturity
Consideration or interest upon presentation of the Securities of such series or
coupons appertaining thereto, if any, 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 payment of all amounts due the Trustee under Section
8.07;
Second: To the payment of the amounts then due and unpaid upon the
Securities of such series and coupons for principal of (and premium if
any), Maturity Consideration and interest, respectively; and
Third: The balance, if any, to the Company.
Section 7.07 Limitation on Suits.
(a) No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Default with respect to Securities of
such series;
(2) the Holders of not less than a majority in principal amount
or, if such Securities are not payable at Maturity for a fixed
principal amount, the aggregate issue price of the Outstanding
Securities of such series shall have made written request to the
41
Trustee to institute proceedings in respect of such Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for [60] days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and --
(5) no direction inconsistent with such written request has been
given to the Trustee during such [60]-day period by the Holders
of a majority in principal amount or, if such Securities are not
payable at Maturity for a fixed principal amount, the --
aggregate issue price of the Outstanding Securities of such
series. it being understood and intended that no one or more
Holders of Securities of such series shall have any right in any
manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities of such series of Holders of any
other series, or to obtain or to seek to obtain priority or
preference over any other such Holders or to enforce any right
under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all the Holders of
Securities of such series.
(b) The following events shall be "Defaults" with respect to any
series of Securities under this Indenture:
(1) an Event of Default with respect to such series specified in
Section 7.01; or
(2) default in the payment of principal of or premium, if any, on
any Securities of such series at its Maturity; or
(3) default in the delivery or payment of Maturity Consideration
when due; or
(4) default in the payment of any interest upon any Securities of
such series as and when the same shall become due and payable,
and continuance of such default for a period of [30] days; or --
(5) failure on the part of the Company to duly observe or perform
any of the other covenants or agreements on its part in the
Securities of such series or in this Indenture and continuance of
such failure for a period of sixty days after the date on which
written notice of such failure, requiring the Company to remedy
the same and stating that such notice is a "Notice of Default"
hereunder, shall have been given by registered mail to the
Company by the Trustee, or to the Company and the Trustee by the
holders of at least [____________] in aggregate principal amount
or, if such Securities are not payable at Maturity for a fixed
principal amount, [____________] of the aggregate issue price, of
the Securities of such series at the time Outstanding; or
(6) any other Default provided with respect to Securities of that
Series.
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Section 7.08 Unconditional Right of Securityholders to Receive Principal,
Premium, Maturity Consideration and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment or delivery of the principal of (and premium,
if any), Maturity Consideration and (subject to Section 3.07) interest on such
Security or payment of such coupon on the respective Stated Maturity or
Maturities expressed in such Security or coupon (or, in the case of redemption,
on the Redemption Date), to convert such Security in accordance with Article
[___] and to institute suit for the enforcement of such payment or delivery, and
such rights shall not be impaired without the consent of such Holder.
Section 7.09 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 7.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, lost, destroyed or stolen Securities or coupons in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 7.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Default shall impair
any such right or remedy or constitute a waiver of any such Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 7.12 Control by Holders.
The Holders of not less than a majority in principal amount, or if such
Securities are not payable at Maturity for a fixed principal amount, the
aggregate issue price of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting
43
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of such
series, provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) such direction is not unjustly prejudicial to the rights of
Holders of such series not taking part in such direction;
(c) subject to the provisions of Section 8.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee,
in good faith, shall by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve
the Trustees in personal liability; and
(d) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 7.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount, or if such
Securities are not payable at Maturity for a fixed principal amount, the
aggregate issue price of the Outstanding Securities of any series may on behalf
of the Holders of all the Securities of such series waive any past Default
hereunder and its consequences, except a Default not theretofor cured:
(a) in the payment or delivery of the principal of (and premium, if
any), Maturity Consideration or interest on any Security of such
series, or
(b) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of the Securities of such series under this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Section 7.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding in the aggregate more than
10% in principal
44
amount, or if such Securities are not payable at Maturity for a fixed principal
amount, the aggregate issue price of the Outstanding Securities of any series,
or to any suit instituted by any Holder of Securities or coupons for the
enforcement of the payment of the principal of (and premium, if any), Maturity
Consideration or interest on any Security or payment of any coupon on or after
the respective Stated Maturities expressed in such Security or coupon (or, in
the case of redemption, on or after the Redemption Date).
Section 7.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the exercise of
every such power as though no such law had been enacted.
ARTICLE VIII.
THE TRUSTEE
Section 8.01 Certain Duties and Responsibilities.
(a) Except during the continuance of a Default with respect to any
series of Securities,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and only
with respect to series of Securities as to which it is Trustee,
and no implied covenants or obligations shall be read into this
Indenture against the Trustee; 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; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not on their face they conform to the requirements of this
Indenture.
(b) In case a Default has occurred and is continuing as to a series
of Securities as to which it is Trustee, the Trustee shall
exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except
that,
45
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount, or, if such Securities are not payable at
Maturity for a fixed principal amount, the aggregate issue price
of the Outstanding Securities of any series, relating to the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to
Securities of such series. (d) No provision of this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustees shall be subject to
the provisions of this Section.
Section 8.02 Notice of Default.
Within [90] days after the occurrence of any default hereunder actually
known by a Responsible Officer of the Trustee with respect to Securities of any
series, the Trustee shall transmit by mail to all Holders of Securities of such
series, as their names and addresses appear in the Security Register notice of
such default hereunder, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any), Maturity Consideration or interest on any
Security of such series, or in the payment of any sinking fund installment with
respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series; and provided further,
that in the case of any default of the character specified in Section 7.07(b)(4)
with respect to Securities of such series, no such notice to Holders of
Securities of such series shall be given until at least [30] days after the
occurrence thereof. For the purpose of this Section, the term "default" with
respect to Securities of any series, means any event which is, or after notice
or lapse of time, or both, would become, a Default or Event of Default with
respect to Securities of such series.
Section 8.03 Certain Rights of Trustee.
Subject to the provisions of Section 8.01:
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(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed to
be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent (including
Paying Agents) or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice or knowledge of
any Default or Event of Default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice
of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture;
47
(j) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder; and
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be
signed by any person authorized to sign an Officers' Certificate,
including any person specified as so authorized in any such
certificate previously delivered and not superseded.
Section 8.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof. The Trustee
shall not be responsible for the use or application of any monies received by
any Paying Agent other than the Trustee.
Section 8.05 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, the Security
Registrar, any Co-Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 8.08 and 8.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar, Co-Security Registrar or such other agent.
Section 8.06 Money or Other Property Held in Trust.
Money or other property held by the Trustee or any Paying Agent in
trust hereunder need not be segregated from other funds or other property except
to the extent required by law. Neither the Trustee nor any Paying Agent shall be
under any liability for interest on any money or other property received by it
hereunder except as otherwise agreed in writing with the Company.
Section 8.07 Compensation and Reimbursement.
The Company agrees:
(a) to pay to each of the Trustee, any Co-Trustee, the Security
Registrar, the Authenticating Agent any Co-Security Registrar and
Paying Agent, as the case may be, from time to time such
compensation as shall be agreed in writing between the Company
and each of them (as applicable) for all services rendered by
them hereunder (which compensation
48
shall not be limited by any provisions of law in regard to the
compensation of a trustee of an express trust);
(b) to pay to or to reimburse each of the Trustee, any Co-Trustee,
the Security Registrar, the Authenticating Agent any Co-Security
Registrar and any Paying Agent, as the case may be, upon their
request for all reasonable expenses, disbursements and advances
incurred or made by any one of them in accordance with any
provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of their agents
and counsel), except any such expense, disbursement or advance as
may be attributable to their negligence or bad faith; and
(c) to indemnify each of the Trustee, any Co-Trustee, the Security
Registrar, the Authenticating Agent any Co-Security Registrar and
any Paying Agent, and any predecessor of each of them as the case
may be, for, and to hold each of them harmless against any and
all loss, liability, damage, claim or expense, including taxes
(other than taxes based on the income of each of them) incurred
without negligence or bad faith on the part of such entity,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending themselves against any claim
(whether asserted by the Company, a Holder or any other Person)
or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
pursuant to this Section 8.07, the Company and the Holders agree that the
Trustee for the Securities of any series shall have a lien prior to the
Securities of all such series upon all property and funds held or collected by
the Trustee as such. The claims of the Trustee under this Section shall not be
subject to the provisions of Article Fourteen.
The obligations of the Company under this Section shall survive the
resignation and removal of the Trustee and the satisfaction and discharge of
this Indenture.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 7.01(a) or Section 7.01(b), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
Section 8.08 Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act during
the period of time provided for therein. In determining whether the Trustee has
a conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded this
Indenture with respect to Securities of any particular series of Securities
other than that series.
49
Nothing herein shall prevent the Trustee from filing with the
Securities and Exchange Commission the application referred to in the second to
last paragraph of Section 310(b) of the Trust Indenture Act.
Section 8.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to each series of
Securities hereunder which shall at all times be either:
(a) a Corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust
powers and subject to supervision or examination by federal,
state or District of Columbia authority; or
(b) a Corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the
Commission, authorized under such laws to exercise corporate
trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees, in either
case having a combined capital and surplus of at least
$50,000,000.
If such Corporation or national banking association publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Corporation or national
banking association shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. Neither the
Company nor any person directly or indirectly controlling, controlled by, or
under common control with the Company shall serve as trustee for the Securities
of any series issued hereunder. If at any time the Trustee with respect to any
series of Securities shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 8.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
(b) The Trustee may resign with respect to any series of Securities
at any time by giving written notice thereof to the Company. If
an instrument of acceptance by a successor Trustee, required by
Section 8.11, shall not have been delivered to the resigning
Trustee within [30] days after the giving of such notice of
resignation, the resigning Trustee may petition, at the expense
of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of
such series.
50
(c) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered
to the Trustee within [30] days after the giving of such notice
of removal, the Trustee being removed may petition, at the
expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the
Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act with respect to any series of Securities
after written request therefor by the Company or by any
Securityholder who has been a bona fide Holder of a Security of
any series for at least six months; or
(2) the Trustee shall cease to be eligible under Section 8.09
with respect to any series of Securities and shall fail to resign
after written request therefor by the Company or by any Holder of
Securities of such series; or
(3) the Trustee shall become incapable of acting with respect to
any series of Securities or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 7.14, any
Securityholder who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy
shall occur in the office of Trustee with respect to any series
of Securities for any cause, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect
to other Securities of any particular series) and shall comply
with the applicable requirements of Section 8.11. If, within one
year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
such series of Securities shall be appointed by the Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
retiring Trustee with respect to such series, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of
Section 8.11, become the successor Trustee with respect to such
series and to that extent supersede the successor Trustee
appointed by the Company with respect to such series. If no
successor Trustee with
51
respect to such series shall have been so appointed by the
Company or the Holders of Securities of such series and accepted
appointment in the manner hereinafter provided, any
Securityholder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor trustee with respect
to the Securities of any series by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders of
Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series
are issuable as Bearer Securities, by publishing notice of such
event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the
name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
Section 8.11 Acceptance of Appointment by Successor.
(a) In the case of the appointment hereunder of a successor Trustee
with respect to any series of Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Trustee or Trustees an instrument
accepting such appointment and thereupon the resignation or
removal of the retiring Trustee or Trustees shall become
effective with respect to all or any series as to which it is
resigning as Trustee, and such successor Trustee, without any
further act, deed, or conveyance, shall become vested with all
the rights, powers, trusts and duties of the retiring Trustee or
Trustees with respect to all or any such series; but, on the
request of the Company or such successor Trustee, such retiring
Trustee or Trustees shall upon payment of its charges and all
amounts owing under Section 8.07, execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers and trusts of such retiring Trustee or Trustees with
respect to all or any such series; and shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee or Trustees hereunder with
respect to all or any such series.
(b) 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 (a) 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, (b) 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
(c) shall add to or change any of the provisions of this
Indenture as shall be necessary to
52
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Trustee and that no Trustee shall be responsible for
any notice given to, or received by, or any act or failure to act
on the part of any other Trustee hereunder, 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, such retiring Trustee
shall with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates have no
further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the
Trustee under this Indenture, and each 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 to the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
Trustee, to the extent contemplated by such supplemental
indenture, 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.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraphs (a) and (b)
of this Section, as the case may be.
(d) No successor Trustee with respect to a series of Securities shall
accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible with respect to
such series under this Article.
Section 8.12 Merger, Conversion, Consolidation or Succession to Business of
Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation or national banking
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or national banking association
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation or national banking association shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
53
Section 8.13 Preferential Collection of Claims against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act
with respect to each series of Securities for which it is Trustee.
Section 8.14 Appointment of Authenticating Agent.
At any time when any of the Securities of any series remain Outstanding
the Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities, which may include any Affiliate of the Company. Such
Authenticating Agent or Agents, at the option of the Trustee, shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer, partial conversion or
partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by a Trustee or the Trustee's certificate of
authentication or the delivery of Securities to the Trustee for authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent, a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent and delivery of
Securities to the Authenticating Agent on behalf of the Trustee. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation or national banking association organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus as most recently reported or determined by
it sufficient under the laws of any jurisdiction under which it is organized and
in which it is doing business to conduct a trust business, and which is
otherwise authorized under such laws to conduct such business and is subject to
supervision or examination by federal or state authority. Notwithstanding the
foregoing, an Authenticating Agent located outside the United States may be
appointed by the Trustee if previously approved in writing by the Company and if
such Authenticating Agent has a combined capital and surplus as most recently
reported or determined by it sufficient under the laws of any jurisdiction under
which it is organized and in which it is doing business to conduct a trust
business. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation or national banking association into which an
Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation or national banking association resulting from
any merger, conversion or consolidation to which such Authenticating Agent shall
be a party, or any corporation or national banking association succeeding to all
or substantially all of the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation or national banking association shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
54
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time (and upon
request by the Company shall) terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such termination, or in case
at any time such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The provisions of Sections 3.08, 8.04, 8.05 and 8.07 shall be
applicable to each Authenticating Agent.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series covered by such appointment may
have endorsed thereon, in addition to the Trustee's certificate of
authentication an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK, not in its
individual capacity, but solely as Trustee
By:
--------------------------------
Authorized Officer
Date:_________________________
Section 8.15 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 or otherwise. 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 and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
55
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Securityholders.
Without notice to or the consent of any Holder of any Security or
coupon, the Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) 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
(b) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more
series of Securities and to add to or change 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 Section 8.11; or
(c) to add to the covenants of the Company, for the benefit of the
Holders of Securities of all or any series (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely
for the benefit of such series), or to surrender any rights or
power herein conferred upon the Company; or
(d) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(e) to add any additional Defaults or Events of Default with respect
to all or any series of the Securities (and, if such Default or
Event of Default is applicable to less than all series of
Securities, specifying the series to which such Default or Event
of Default is applicable); or
(f) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registerable as to
principal, to change or eliminate any restrictions on the payment
of principal of (or premium, if any), Maturity Consideration or
any interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit the issuance of
Securities in uncertificated form, provided any such action shall
not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or
(g) to change or eliminate any of the provisions of this Indenture,
provided that, any such change or elimination shall become
effective only when there is no Security Outstanding
56
of any series created prior to the execution of such supplemental
indenture which is adversely affected by such change in or
elimination of such provisions; or
(h) to establish the form or terms of a Security of any series as
permitted by Sections 2.01 and 3.01; or
(i) to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee; or
(j) to provide for conversion rights of the Holders of the Securities
of any series to enable such Holders to convert such Securities
into other securities of the Company.
Any supplemental indenture authorized by the provisions of this Section
9.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 9.02.
Section 9.02 Supplemental Indentures With Consent of Securityholders.
With the consent of the Holders of not less than a majority in
principal amount, or if such Securities are not payable at Maturity for a fixed
principal amount, a majority of the aggregate issue price of the Outstanding
Securities of all series affected by such supplemental indenture or indentures
(acting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purposes of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of each such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holders of each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or the Stated
Maturity of any installment of principal of or interest (or
premium, if any) or any Maturity Consideration, on any
Outstanding Security, or reduce the principal amount or Maturity
Consideration thereof (or premium, if any, thereon) or the rate
of interest thereon, or change the obligation of the Company to
pay additional amounts pursuant to Section 5.04 (except as
contemplated by Section 10.01(a) and permitted by Section 9.01),
or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable or deliverable
upon a declaration of acceleration of the Maturity thereof
pursuant to Section 7.02, or change the method of calculating
interest thereon or the Place of Payment where, or the coin or
currency unit or other property in which any Outstanding Security
(or premium, if any, thereon) or the interest therefor is payable
or deliverable or impair the right to institute suit for the
enforcement of any such payment or delivery on or after the
Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or adversely affect the right to
convert any Security as provided in Article 12 (except as
permitted by 9.01(j)), or modify the provisions of this Indenture
with respect to the subordination of the Securities in a manner
adverse to the Holders; or
(b) reduce the percentage in principal amount or issue price of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture
57
or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or of
certain Defaults hereunder and their consequences) provided for
in this Indenture; or
(c) change any obligations of the Company to maintain an office or
agency in the places and for the purposes specified in Section
5.02; or
(d) make any change relating to the subordination of the Securities
in a manner adverse to the Holders of such Securities; or
(e) make any change relating to the subordination of the Securities
in a manner adverse to holders of Senior Indebtedness unless the
holders of such Senior Indebtedness consent to such change under
the terms of such Senior Indebtedness; or
(f) modify any of the provisions of this Section or Section 7.13,
except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not
be deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant
changes in this Section or the deletion of this proviso, in
accordance with the requirements of Sections 8.11(b) and 9.01(b).
A supplemental indenture which changes or eliminates any covenant or
other provisions of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
in addition to the documents required by Section 1.02, and (subject to Section
8.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
and complies with this Indenture and has been duly authorized, executed and
delivered and is enforceable in accordance with its terms. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, liabilities, duties or immunities under this
Indenture or otherwise.
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Section 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and any 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 bounded thereby.
Section 9.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Company, bear a notation in form approved by the Company as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
ARTICLE X.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 10.01 Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer or which leases the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment or delivery of the principal of (and
premium, if any), Maturity Consideration and interest on
(including all additional amounts, if any, payable pursuant to
Section 5.04) all the Securities, conversion rights in accordance
with Section 12.11 and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no Default,
and no event which, after notice or lapse of time, or both, would
become a Default, shall have happened and be continuing; and
59
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation,
merger, conveyance or transfer and such supplemental indenture
comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied
with;
provided, that, the provisions of this Section 10.01 may be changed as to any
series of Securities if and to the extent provided in an Officer's Certificate
delivered pursuant to Section 3.01 establishing the terms of such series of
Securities.
Section 10.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 10.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance or transfer 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
corporation had been named as the Company herein. In the event of any such
conveyance or transfer, the Company as the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and may be
dissolved, wound up and liquidated at any time thereafter.
Such successor corporation may cause to be signed, and may issue either
in its own name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such successor corporation
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication pursuant to such
provisions and any Securities which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee on its behalf for the purpose
pursuant to such provisions. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale or conveyance, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
ARTICLE XI.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and rights to receive payments thereon
and any right to receive additional amounts, as provided in Section 5.04), and
each Trustee, on demand of and at the expense of the
60
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when,
(a) either,
(1) all Securities theretofore authenticated and delivered (other
than (w) coupons appertaining to Bearer Securities surrendered
for exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has not been waived
as provided in Section 3.05, (x) coupons appertaining to Bearer
Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in
Section 4.07, (y) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06, and (z) 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 5.03) have
been delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the Trustee
for cancellation: (x) have become due and payable, or (y) will
become due and payable at their Stated Maturity within one year,
or (z) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (2)(x), (y) or (z) above, has
deposited or caused to be deposited with the Trustee, as trust funds
in trust for the purpose, an amount (said amount to be immediately due
and payable to the Holders) sufficient to pay and discharge the entire
indebtedness on such Securities and coupons of the relevant series not
theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such deposit (in the
case of Securities which have become due and payable), or to the
Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 8.07, the obligations of
the Company to any Authenticating Agent under Section 8.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (2) of clause (a) of
this Section, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 5.03 shall survive such satisfaction and discharge. The
Trustee may give notice to the Holders of Securities Outstanding of the
immediate availability of the amount referred to in clause (a) of this Section
11.01. Funds held pursuant to this Section shall not be subject to the
provisions of Article Fourteen.
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In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of the Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. The effectiveness of any such instrument shall be conditional
upon receipt of such instruments from the Trustee.
Section 11.02 Application of Trust Money or Property.
Subject to the provisions of the last paragraph of Section 5.03, all
money or property deposited with the Trustee pursuant to Section 11.01 in
respect of Securities of a series shall be held in trust and applied by it, in
accordance with the provisions of such Securities, the coupons, if any, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any), Maturity Consideration and interest for whose payment such money has been
deposited with the Trustee; unless otherwise specified herein, such money need
not be segregated from other funds except to the extent required by law. All
money deposited with the Trustee pursuant to Section 11.01 (and held by it or
any Paying Agent) for the payment of Securities subsequently converted shall be
returned to the Company upon Company Request.
ARTICLE XII.
[Conversion of Securities]
Section 12.01 Conversion Privilege
Subject to and upon compliance with the terms of the Securities and the
provisions of this Article, Securities of any series or any portion of the
principal amount thereof that is $[_____] or an integral multiple of $[_____]
may be converted at the principal amount thereof, or such portion thereof, into
fully paid and nonassessable shares (calculated as to each conversion to the
nearest 1/100 of a share) of Common Stock, in accordance with the terms of such
series of Securities and (except as otherwise specified as contemplated by
Section 3.01) in accordance with this Article. In case a Security or portion
thereof is called for redemption, such conversion right in respect of the
Security or portion so called shall expire at the close of business on the
Business Day that is 10 days prior to the Redemption Date, unless the Company
defaults in making the payment due upon redemption.
The price at which shares of Common Stock shall be delivered upon
conversion, which shall be specified as contemplated by Section 3.01, shall be
referred to herein as the "Conversion Price." The Conversion Price shall be
adjusted in certain instances as provided in paragraphs (a), (b), (c), (d) and
(g) of Section 12.04.
Section 12.02 Exercise of Conversion Privilege
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency of the Company
maintained for that purpose pursuant to Section 4.02,
62
accompanied by written notice to the Company at such office or agency that the
Holder elects to convert such Security or, if less than the entire principal
amount thereof is to be converted, the portion thereof to be converted.
Securities surrendered for conversion during the period from the close of
business on any Regular Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date shall (except in the case
of Securities or portions thereof that have been called for redemption on a
Redemption Date within such period) be accompanied by payment in New York
Clearing House funds or other funds acceptable to the Company of an amount equal
to the interest payable on such Interest Payment Date on the principal amount of
Securities being surrendered for conversion. Except as provided in the preceding
sentence and in Section 3.07, no payment or adjustment shall be made upon any
conversion on account of any interest accrued on the Securities surrendered for
conversion or on account of any dividends on the Common Stock issued upon
conversion.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and deliver at such office or agency a certificate or certificates
for the number of full shares of Common Stock issuable upon conversion, together
with payment in lieu of any fractional share, as provided in Section 12.03.
In the case of any Security that is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the portion of the principal amount of such Security not converted.
Section 12.03 Fractional Shares
No fractional shares of Common Stock shall be issued upon conversion of
Securities. If more than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares that shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof) so surrendered. Instead
of a fractional share of Common Stock that would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the
Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the market price per share of Common Stock (as
determined by the Board of Directors or in any manner prescribed by the Board of
Directors) at the close of business on the day of conversion.
Section 12.04 Adjustment of Conversion Price
(a) In case the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company in
Common Stock, the Conversion Price in effect at the opening of
the Trading Day following the date fixed for the determination of
stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Conversion
Price by a fraction, the numerator of which shall be the
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number of shares of Common Stock outstanding at the close of the
Trading Day on the date fixed for such determination and the
denominator of which shall be the sum of such number of shares
and the total number of shares constituting such dividend or
other distribution, such reduction to become effective
immediately after the opening of business on the day following
the date fixed for such determination. For the purposes of this
paragraph (a), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the
Company, but shall include shares issuable in respect of scrip
certificates issued in lieu of fractional shares of Common Stock.
The Company will not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company.
(b) In case the Company shall issue rights or warrants to all holders
of its Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the current
market price per share (determined as provided in paragraph (f)
of this Section) of the Common Stock on the dated fixed for the
determination of stockholders entitled to receive such rights or
warrants, the Conversion Price in effect at the opening of the
Trading Day following the date fixed for such determination shall
be reduced by multiplying such Conversion Price by a fraction,
the numerator of which shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock that
the aggregate of the offering price of the total number of shares
of Common Stock so offered for subscription or purchase would
purchase at such current market price and the denominator of
which shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination
plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective
immediately after the opening of the Trading Day following the
date fixed for determination. For the purposes of this paragraph
(b), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company, but
shall include shares issuable in respect of scrip certificates
issued in lieu of fractional shares of Common Stock. The Company
will not issue any rights or warrants in respect of shares of
Common Stock held in the treasury of the Company.
(c) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion
Price in effect at the opening of the Trading Day following the
day upon which such subdivision becomes effective shall be
proportionately reduced and, conversely, in the case that
outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Price in
effect at the opening of business on the day following the day
upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision
or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its Indebtedness
or assets (including securities, but excluding any rights or
warrants referred to in paragraph (b) of this Section, any
dividend
64
or distribution paid in cash out of the retained earnings of the
Company and any dividend or distribution referred to in paragraph
(a) of this Section), the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the close of
business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction, the
numerator of which shall be the current market price share
(determined as provided in paragraph (f) of this Section) of the
Common Stock on the date fixed for such determination less the
then fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board
Resolution filed with the Trustee) of the portion of the assets
or evidences of Indebtedness so distributed applicable to one
share of Common Stock and the denominator of which shall be such
current market price per share of the Common Stock, such
adjustment to become effective immediately prior to the opening
of business on the day following the date fixed for the
determination of stockholders entitled to receive such
distribution.
(e) The reclassification of Common Stock into securities other than
Common Stock (other than any reclassification upon a
consolidation or merger, to which Section 12.11 applies) shall be
deemed to involve (i) a distribution of such securities other
than Common Stock to all holders of Common Stock (and the
effective date of such reclassification shall be deemed to be
"the date fixed for the determination of stockholders entitled to
receive such distribution" and "the date fixed for such
determination" within the meaning of paragraph (d) of this
Section) and (ii) a subdivision or combination, as the case may
be, of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the number of
shares of Common Stock outstanding immediately thereafter (and
the effective date of such reclassification shall be deemed to be
"the day upon which such subdivision becomes effective" or "the
day upon which such combination becomes effective," as the case
may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (c) of this
Section).
(f) For the purpose of any computation under paragraphs (b) and (d)
of this Section, the current market price per share of Common
Stock on any date shall be deemed to be the average of the daily
closing prices for the five consecutive Trading Days selected by
the Company commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the day in question and the
day before the "ex" date with respect to the issuance or
distribution requiring such computation. The closing price for
each day shall be the last reported sales price regular way or,
in case that no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way,
in either case on the New York Stock Exchange or, if the Common
Stock is not listed or admitted to trading on such Exchange, on
the principal national securities exchange on which the Common
Stock is listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, on the
Nasdaq National Market or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted
on the Nasdaq National Market, the average of the closing bid and
asked prices in the over-the-counter market as furnished by any
New York Stock Exchange member firm selected from time to time by
the Company for that purpose. For purposes of this paragraph, the
term "`ex date," when used with respect to any issuance or
distribution,
65
means the first date on which the Common Stock trades regular way
on such exchange or in such market without the right to receive
such issuance or distribution.
(g) The Company may make such reductions in the Conversion Price, in
addition to those required by paragraphs (a), (b), (c) and (d) of
this Section, as it considers to be advisable in order that any
event treated for federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the recipients.
Section 12.05 Notice of Adjustments of Conversion Price
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price in
accordance with Section 12.04 and shall prepare a certificate
signed by the Treasurer of the Company setting forth the adjusted
Conversion Price and showing in reasonable detail the facts upon
which such adjustment is based, and such certificate shall
forthwith be filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 4.02; and
(b) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be
required and, as soon as practicable after it is required, shall
be mailed by the Company to all Holders at their last addresses
as they shall appear in the Register.
Section 12.06 Notice of Certain Corporate Action
In case:
(a) the Company shall declare a dividend (or any other distribution)
on the Common Stock payable otherwise than in cash out of its
retained earnings; or
(b) the Company shall authorize the granting to the holders of the
Common Stock of rights or warrants to subscribe for or purchase
any shares of capital stock of any class or of any other rights;
or
(c) of any reclassification of the Common Stock (other than a
subdivision or combination of its outstanding shares of Common
Stock), or of any consolidation or merger to which the Company is
a party and for which approval of any stockholders of the Company
is required, or of the sale or transfer of all or substantially
all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 4.02, and shall
cause to be mailed to all Holders at their last addresses as they shall appear
in the Register, at least 20 days (or 10 days in any case specified in clause
(a) or (b) above) prior to the applicable record or effective date hereinafter
specified, a notice stating (y) the date on which a record is to be taken for
the purpose of such
66
dividend, distribution, rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights or warrants are to be determined, or (z) the
date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up.
Section 12.07 Company to Reserve Common Stock
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock then issuable upon the conversion of all outstanding Securities.
Section 12.08 Taxes on Conversions
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common Stock on conversion of Securities
pursuant hereto. The Company shall not, however, be required to pay any tax that
may be payable in respect of any transfer involved in the issue and delivery of
shares of Common Stock in a name other than that of the Holder of the Security
or Securities to be converted, and no such issue or delivery shall be made
unless and until the Person requesting such issue has paid to the Company the
amount of any such tax, or has established to the satisfaction of the Company
that such tax has been paid.
Section 12.09 Covenant as to Common Stock
The Company covenants that all shares of Common Stock that may be
issued upon conversion of Securities will upon issue be fully paid and
nonassessable and, except as provided in Section 12.08, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
Section 12.10 Cancellation of Converted Securities
All Securities delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 3.09.
Section 12.11 Provisions in Case of Consolidation, Merger or Sale of Assets
In case of any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another Person into the Company
(other than a merger that does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock) or any sale or
transfer of all or substantially all of the assets of the Company, the Person
formed by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
outstanding shall have the right thereafter, during
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the period such Security shall be convertible as specified in Section 12.01, to
convert such Security only into the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer by a
holder of the number of shares of Common Stock into which such Security might
have been converted immediately prior to such consolidation, merger, sale or
transfer, assuming such holder of Common Stock (i) is not a Person with which
the Company consolidated or into which the Company merged or which merged into
the Company or to which such sale or transfer was made, as the case may be
("constituent Person"), or an Affiliate of a constituent Person and (ii) failed
to exercise his rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer (provided that if the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer is
not the same for each share of Common Stock of the Company held immediately
prior to such consolidation, merger, sale or transfer by others than a
constituent Person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("nonelecting share"), then for the
purpose of this Section the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by each
nonelecting share shall be deemed to be the kind and amount so receivable per
share by a plurality of the nonelecting shares). Such supplemental indenture
shall provide for adjustments that, for events subsequent to the effective date
of such supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The above
provisions of this Section shall similarly apply to successive consolidations,
mergers, sales or transfers.
The Company shall be solely responsible for performing the duties and
responsibilities contained in this Article and the Trustee shall have no
responsibility therefor.]
ARTICLE XIII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 13.01 Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security or coupon, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom; and that any and all such personal liability, either at common law or
in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or coupons or implied therefrom, are
hereby
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expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of the Securities.
ARTICLE XIV.
SINKING FUNDS
Section 14.01 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 3.01 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 14.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 14.02 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series, with all unmatured coupons appertaining thereto and
(ii) may apply as a credit Securities [of a series that have been converted
pursuant to Article 12 or] that have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee for
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 14.03 Redemption of Securities for Sinking Fund.
Not less than [60] days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee and the Security
Registrar an Officers' Certificate specifying (i) the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, (ii)
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 14.02 (such Security to be
credited, or proof of ownership thereof by the Company satisfactory to the
Trustee, to be delivered together with the Officers' Certificate), and (iii)
that none of such Securities has theretofore been so credited and stating the
basis for such credit, and will also deliver to the Trustee any Securities to
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be so delivered. Not less than [30] days before each sinking fund payment date,
the [Security Registrar] shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 4.03 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 4.04. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Section 4.06 and 4.07 and subject to the limitations set
forth in Section 4.08.
ARTICLE XV.
SUBORDINATION
Section 15.01 Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of a Security by his acceptance thereof, likewise
covenants and agrees, that the payment or delivery of the principal of and
premium, if any, Maturity Consideration and interest on each and all of the
Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment or delivery to the prior payment or
satisfaction in full of all Senior Indebtedness.
Section 15.02 Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities.
(a) Upon any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the
Company, whether in bankruptcy, insolvency, reorganization or
receivership proceedings or upon an assignment for the benefit of
creditors or any other marshalling of the assets and liabilities
of the Company or otherwise (subject to the power of a court of
competent jurisdiction to make other equitable provision
reflecting the rights conferred in this Indenture upon the Senior
Indebtedness and the holders thereof with respect to the
Securities and the Holders thereof by a lawful plan of
reorganization under applicable bankruptcy law),
(1) the holders of all Senior Indebtedness shall first be
entitled to receive payment or delivery in full in accordance
with the terms of such Senior Indebtedness of the principal
thereof, premium, if any, Maturity Consideration and the interest
due thereon (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or
reorganization of the Company under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) before the
Holders of the Securities are entitled to receive any payment or
delivery upon the principal of or premium, if any, Maturity
Consideration or interest on indebtedness evidenced by the
Securities;
(2) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, including any
such payment or distribution which may be payable or deliverable
by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities, shall be
paid by the liquidating trustee or agent or other
70
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, in accordance with
the priorities then existing among holders of Senior Indebtedness
for payment of the aggregate amounts remaining unpaid on account
of the principal of and premium, if any, and interest (including
interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Company
under any applicable bankruptcy, insolvency, or similar law now
or hereafter in effect) 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; it being understood that if the
Holders of Securities shall fail to file a proper claim in the
form required by any proceeding referred to in this subparagraph
(ii) prior to thirty days before the expiration of the time to
file such claim or claims, then the holders of Senior
Indebtedness are hereby authorized to file an appropriate claim
or claims for and on behalf of the Holders of Securities in the
form required in any such proceeding; and
(3) in the event that, notwithstanding the foregoing, 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 indebtedness of the Company
being subordinate to the payment of the Securities, shall be
received by the Trustee or Holders of the Securities before all
Senior Indebtedness is paid in full, such payment or distribution
shall be held for the benefit of and shall be paid over to the
Holders of such 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, as aforesaid, for application
to the payment of all Senior Indebtedness remaining unpaid until
all such Senior Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or distribution (or
provision thereof) to the holders of such Senior Indebtedness.
(b) Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated (equally and
ratably with the holders of all indebtedness of the Company which
by its express terms is subordinated to indebtedness of the
Company to substantially the same extent as the Securities are
subordinated and is entitled to like rights of subordination) to
the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the
Company applicable to the Senior Indebtedness until the principal
of and premium, if any, Maturity Consideration and interest on
the Securities shall be paid in full and no such payments or
distributions to holders of such Senior Indebtedness to which the
Holders of the Securities would be entitled except for the
provisions hereof of cash, property or securities otherwise
distributable to the Senior Indebtedness shall, as between the
Company, its creditors, other than the holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be
a payment by the Company to or on account of the Senior
Indebtedness.
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(c) It is understood that the provisions of this Article are intended
solely for the purpose of defining the relative rights of the
Holders of the Securities, on the one hand, and the holders of
Senior Indebtedness, on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is
intended to or shall (i) impair, as between the Company, and the
Holders of the Securities, the obligation of the Company, which
is unconditional and absolute (and which, subject to the rights
under this Article of the holders of Senior Indebtedness, is
intended to rank equally with all other general obligations of
the Company), to pay to the Holders of the Securities the
principal of, premium, if any, Maturity Consideration and
interest (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or
reorganization of the Company under any applicable bankruptcy,
insolvency or similar law now or hereafter in effect) on the
Securities as and when the same shall become due and payable in
accordance with their terms, (ii) affect the relative rights of
the Holders of the Securities and creditors of the Company, other
than the holders of the Senior Indebtedness, (iii) 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
of the holders of Senior Indebtedness and under Section 15.10 of
Entitled Persons, in respect of cash, property or securities of
the Company received upon the exercise of any such remedy or (iv)
prevent the application by the Trustee or any Paying Agent of any
moneys deposited with it hereunder to the payment of or on
account of the principal of or premium, if any, Maturity
Consideration or interest on the Securities or prevent the
receipt by the Trustee or any Paying Agent of such moneys, if,
prior to the second Business Day prior to such deposit, the
Trustee or such Paying Agent did not have written notice, in
accordance with Section 15.06 hereof, of any event prohibiting
the making of such deposit by the Company and the Trustee shall
not be affected by any notice which may be received by it on or
after such second Business Day.
(d) Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the
provisions of Section 8.01, and the Holders of the Securities
shall be entitled to rely upon any order or decree of a court of
competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending or upon a
certificate of the liquidating trustee or agent or other person
making any distribution to the Trustee or to the Holders of the
Securities for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article. In the absence of any such liquidating trustee,
agent or other person or any certification by any such person,
the Trustee shall be entitled to rely upon a written notice by a
Person representing himself to be a holder of Senior Indebtedness
(or a trustee or representative on behalf of such holder) as
evidence that such Person is a holder of Senior Indebtedness (or
is such a trustee or representative). 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 Section, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness or Other
Financial Obligations held by such Person, as to the extent to
72
which such Person is entitled to participation in such payment or
distribution, and as to other facts pertinent to the rights of
such Person under this Section, and if such evidence is not
furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to
receive such payment.
(e) With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations with respect to the
holders of Senior Indebtedness shall be read into this Indenture
against the Trustee. The Trustee, however, shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness or
any Entitled Person, and shall not be liable to any such holders
if it shall mistakenly pay over or distribute to or on behalf of
Holders of Securities or the Company moneys or assets to which
any holders of Senior Indebtedness shall be entitled by virtue of
this Article.
Section 15.03 Payments on Securities Prohibited During Event of Default Under
Senior Indebtedness.
In the event and during the continuation of any Default in the payment
of principal of, or premium, if any, or interest on, any Senior Indebtedness
beyond any applicable period of grace, or in the event that any Event of Default
with respect to any Senior Indebtedness shall have occurred and be continuing,
or would occur as a result of the payment referred to hereinafter, permitting
the holders of such Senior Indebtedness (or a trustee on behalf of the holders
thereof) to accelerate the maturity thereof, then, unless and until such Default
or Event of Default shall have been cured or waived or shall have ceased to
exist, no payment or delivery of principal of, or premium, Maturity
Consideration or interest on the Securities, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Securities, shall be
made by the Company.
Section 15.04 Reserved.
Section 15.05 Authorization of Holders to Trustee to Effect Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 15.06 Notice to Trustee.
Notwithstanding the provisions of this Article or any other provisions
of the Indenture, neither the Trustee nor any Paying Agent shall be charged with
knowledge of the existence of any Senior Indebtedness or of any event which
would prohibit the making of any payment of moneys to or by the Trustee or such
Paying Agent, unless and until a Responsible Officer of the Trustee or such
Paying Agent shall have received written notice thereof from the Company or from
the holder of any Senior Indebtedness or from the representative of any such
holder and
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prior to receipt of any such written notice the Trustee shall be entitled to
assume that no such indebtedness or event exists; provided, however, that if a
Responsible 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, issue price, accrued original issue discount, redemption price
or interest, if any, as the case may be, in respect of any Security), the notice
with respect to such money provided for in this Section 15.06, 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 8.01, the Trustee shall be
entitled to conclusively 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, 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, 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 rights of such person to receive such payment.
Section 15.07 Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article in respect of any Senior Indebtedness at any time held by it in its
individual capacity to the same extent as any other holder of such Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
Section 15.08 Not to Prevent Defaults or Events of Default.
The failure to make a payment pursuant to the Securities by reason of
any provision in this Article shall not be construed as preventing the
occurrence of a Default or an Event of Default.
Section 15.09 Trustee Compensation, Etc. Not Prejudiced.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee pursuant to Section 8.07 or to funds held by the Trustee pursuant to
Section 11.01.
74
ARTICLE XVI.
MISCELLANEOUS
Section 16.01 Counterparts.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original; but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
COMMERCE BANCORP, INC. THE BANK OF NEW YORK, as Trustee
By: By:
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Title: Title:
