Exhibit 4.7
_______________________________________________________________________________
INDENTURE
HECLA MINING COMPANY
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
Trustee
Dated as of ____________________
Debt Securities
_______________________________________________________________________________
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TABLE OF CONTENTS
Page
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ARTICLE 1 Definitions and Rules of Construction; Applicability of the
Trust Indenture Act..................................................1
Section 1.01 Definitions.............................................1
Section 1.02 Other Definitions.......................................4
Section 1.03 Rules of Construction...................................4
Section 1.04 Trust Indenture Act.....................................4
ARTICLE 2 The Securities.....................................................5
Section 2.01 Issuable in Series; Form and Dating.....................5
Section 2.02 Execution and Authentication............................8
Section 2.03 Agents..................................................8
Section 2.04 Paying Agent To Hold Money in Trust.....................9
Section 2.05 Securityholder Lists....................................9
Section 2.06 Transfer and Exchange...................................9
Section 2.07 Replacement Securities.................................10
Section 2.08 Outstanding Securities.................................11
Section 2.09 Treasury Securities Disregarded for Certain Purposes...11
Section 2.10 Temporary Securities...................................11
Section 2.11 Global Securities......................................12
Section 2.12 Cancellation...........................................12
Section 2.13 Defaulted Interest.....................................12
Section 2.14 Persons Deemed Owners..................................13
Section 2.15 CUSIP Numbers..........................................13
ARTICLE 3 Redemption........................................................13
Section 3.01 Notice to Trustee......................................13
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Section 3.02 Selection of Securities To Be Redeemed.................14
Section 3.03 Notice of Redemption...................................14
Section 3.04 Effect of Notice of Redemption.........................15
Section 3.05 Deposit of Redemption Price............................15
Section 3.06 Securities Redeemed in Part............................15
ARTICLE 4 Covenants.........................................................15
Section 4.01 Payment of Securities..................................15
Section 4.02 SEC Reports............................................16
Section 4.03 Compliance Certificate.................................16
Section 4.04 Notice of Certain Events...............................16
ARTICLE 5 Successors........................................................16
Section 5.01 When Company May Merge, etc............................16
Section 5.02 Successor Corporation Substituted......................17
ARTICLE 6 Defaults and Remedies.............................................17
Section 6.01 Events of Default......................................17
Section 6.02 Acceleration...........................................18
Section 6.03 Other Remedies.........................................19
Section 6.04 Waiver of Past Defaults................................19
Section 6.05 Control by Majority....................................20
Section 6.06 Limitation on Suits....................................20
Section 6.07 Rights of Holders To Receive Payment...................20
Section 6.08 Priorities.............................................21
Section 6.09 Undertaking for Costs..................................21
Section 6.10 Proof of Claim.........................................21
ARTICLE 7 Trustee...........................................................22
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Section 7.01 Duties of Trustee......................................22
Section 7.02 Rights of Trustee......................................23
Section 7.03 Individual Rights of Trustee; Disqualification.........25
Section 7.04 Trustee's Disclaimer...................................25
Section 7.05 Notice of Defaults.....................................25
Section 7.06 Reports by Trustee to Holders..........................25
Section 7.07 Compensation and Indemnity.............................26
Section 7.08 Replacement of Trustee.................................26
Section 7.09 Successor Trustee by Merger, etc.......................27
Section 7.10 Eligibility............................................27
Section 7.11 Preferential Collection of Claims Against Company......28
ARTICLE 8 Satisfaction and Discharge........................................28
Section 8.01 Satisfaction and Discharge of Indenture................28
Section 8.02 Application of Trust Funds.............................29
Section 8.03 Reinstatement..........................................29
Section 8.04 Repayment to Company...................................29
ARTICLE 9 Amendments........................................................30
Section 9.01 Without Consent of Holders.............................30
Section 9.02 With Consent of Holders................................30
Section 9.03 Compliance with Trust Indenture Act and Section 12.03..31
Section 9.04 Revocation and Effect of Consents and Waivers..........31
Section 9.05 Notice of Amendment; Notation on or Exchange of
Securities..........................................................31
Section 9.06 Trustee Protected......................................32
ARTICLE 10 Conversion.......................................................32
Section 10.01 To be Supplemented....................................32
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ARTICLE 11 Subordination....................................................32
Section 11.01 To be Supplemented....................................32
ARTICLE 12 Miscellaneous....................................................32
Section 12.01 Notices...............................................32
Section 12.02 Communication by Holders with Other Holders...........33
Section 12.03 Certificate and Opinion as to Conditions Precedent....33
Section 12.04 Statements Required in Certificate or Opinion.........33
Section 12.05 Rules by Trustee and Agents...........................34
Section 12.06 Legal Holidays........................................34
Section 12.07 No Recourse Against Others............................34
Section 12.08 Duplicate Originals...................................34
Section 12.09 Variable Provisions...................................34
Section 12.10 Acts of Holders.......................................35
Section 12.11 Governing Law.........................................37
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CROSS-REFERENCE TABLE
TIA Section Indenture Section
----------- -----------------
310 (a)(1)........................................ 7.10
(a)(2)........................................ 7.10
(a)(3)........................................ N.A.
(a)(4)........................................ N.A.
(a)(5)........................................ N.A.
(b)........................................... 7.08; 7.10
(c)........................................... N.A.
311 (a)........................................... 7.11
(b)........................................... 7.11
(c)........................................... N.A.
312 (a)........................................... 2.05
(b)........................................... 12.02
(c)........................................... N.A.
313 (a)........................................... 7.06
(b)(1)........................................ N.A.
(b)(2)........................................ 7.06
(c)........................................... 7.06
(d)........................................... 7.06
314 (a)(1)........................................ 4.02
(a)(2)........................................ 4.02; 12.01
(a)(3)........................................ 4.02
(a)(4)........................................ 4.02; 4.03
(b)........................................... N.A.
(c)........................................... 2.02; 7.02(b); 8.01(3)
(c)(1)........................................ 12.03(1)
(c)(2)........................................ 12.03(2)
(c)(3)........................................ N.A.
(d)........................................... N.A.
(e)........................................... 4.03; 12.04
(f)........................................... 4.03
315 (a)(1)........................................ 6.05; 7.01(b)(t)
(a)(2)........................................ 7.01(b)(2)
(b)........................................... 7.05; 12.01
(c)........................................... 7.01(a)
(d)(1)........................................ 7.0t(b)
(d)(2)........................................ 7.01(c)(2)
(d)(3)........................................ 6.05; 7.01(c)(3)
(e)........................................... 6.09
316 (a)(last sentence)............................ 2.09
(a)(1)(A)..................................... 6.05
(a)(1)(B)..................................... 6.04
(a)(2)........................................ N.A.
(b)........................................... 6.07
vi
TIA Section Indenture Section
----------- -----------------
(c)........................................... 9.04
317 (a)(1)
(a)(2)
(b)........................................... 2.04
318 (a)
N.A. means not applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
vii
INDENTURE dated as of ____________, between HECLA MINING COMPANY, a
corporation organized and existing under the laws of Delaware ("Company"), and
The Bank of New York Trust Company, N.A., a national banking association
("Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness to be issued in one or more series (the
"Securities"), as herein provided, up to such principal amount as may from time
to time be authorized in or pursuant to one or more resolutions of the Board of
Directors or by supplemental indenture.
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of each Series of the Securities:
ARTICLE 1
DEFINITIONS AND RULES OF CONSTRUCTION; APPLICABILITY OF THE TRUST INDENTURE ACT
SECTION 1.01 DEFINITIONS.
"Affiliate" Any Person controlling or controlled by or under common
control with the Company. "Control" for this definition means the power to
direct the management and policies of a Person, directly or indirectly, whether
through the ownership of voting securities, by contract, or otherwise. The terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" Any Registrar, Paying Agent or Conversion Agent.
"Board" The Board of Directors of the Company or any officer or
committee thereof authorized to act for such Board.
"Business Day" A day that is not a Legal Holiday.
"Company" The party named as such above until a successor which duly
assumes the obligations upon the Securities and under the Indenture replaces it
and thereafter means the successor.
"Company Order" means a written request or order signed in the name of
the Company by the Chairman of the Board of Directors, the Vice Chairman of the
Board of Directors, the President, a Vice President, the Treasurer, an Assistant
Treasurer, the Secretary, or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the dated hereof is located at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxxx, 00000, Attention: Corporate Trust Administration, or such
other address as the Trustee may designate from time to time by notice to the
Holders and the Company, or the principal corporate trust office of any
successor Trustee (or such other address as such successor Trustee may designate
from time to time by notice to the Holders and the Company).
1
"Debt" means, with respect to any Person,
(i) any obligation of such Person to pay the principal
of, premium of, if any, interest on (including
interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating
to the Company, whether or not a claim for such
post-petition interest is allowed in such
proceeding), penalties, reimbursement or
indemnification amounts, fees, expenses or other
amounts relating to any indebtedness, and any other
liability, contingent or otherwise, of such Person
(A) for borrowed money (including instances
where the recourse of the lender is to the
whole of the assets of such Person or to a
portion thereof),
(B) evidenced by a note, debenture or similar
instrument (including a purchase money
obligation) including securities,
(C) for any letter of credit or performance bond
in favor of such Person, or
(D) for the payment of money relating to a
capitalized lease obligation;
(ii) any liability of others of the kind described in the
preceding clause (i), which the Person has guaranteed
or which is otherwise its legal liability;
(iii) any obligation of the type described in clauses (i)
and (ii) secured by a lien to which the property or
assets of such Person are subject, whether or not the
obligations secured thereby shall have been assumed
by or shall otherwise be such Person's legal
liability; and
(iv) any and all deferrals, renewals, extensions and
refunding of, or amendments, modifications or
supplements to, any liability of the kind described
in any of the preceding clauses (i), (ii) or (iii).
"Default" Any event which is, or after notice or passage of time would
be, an Event of Default.
"Exchange Act" The Securities Exchange Act of 1934, as amended.
"Holder" or "Securityholder" A Person in whose name a Security is
registered.
"Indenture" This Indenture as amended from time to time, including the
terms of the Securities and any amendments.
"Officers' Certificate" A certificate signed by two Officers, one of
whom must be the President, the Treasurer or a Vice-President of the Company.
See Sections 12.03 and 12.04.
2
"Opinion of Counsel" Written opinion from legal counsel who is
acceptable to the Trustee. See Sections 12.03 and 12.04.
"Person" Any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"Principal" of a Security means the principal of the Security plus the
premium, if any, on the Security which is due or overdue or is to become due at
the relevant time.
"Proceeding" A liquidation, dissolution, bankruptcy, insolvency,
reorganization, receivership or similar proceeding under Bankruptcy Law, an
assignment for the benefit of creditors, any marshalling of assets or
liabilities, or winding up or dissolution, but shall not include any transaction
permitted by and made in compliance with Article 5.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"SEC" The United States Securities and Exchange Commission.
"Securities" The Securities described above issued under this
Indenture.
"Securities Resolution" means a resolution adopted by the Board or by a
committee thereof pursuant to Board delegation authorizing a Series or a
supplemental indenture authorizing a Series executed by an authorized Officer.
"Series" means a series of Securities or the Securities of the series.
"TIA" The Trust Indenture Act of 1939, as amended, as in effect on the
date of this Indenture, except as provided in Sections 1.04 and 9.03.
"Trustee" The party named as such above until a successor replaces it
and thereafter means the successor.
"U.S. Government Obligations" Securities that are direct, noncallable,
nonredeemable obligations of, or noncallable, nonredeemable obligations
guaranteed by, the United States of America for the timely payment of which
obligation or guarantee the full faith and credit of the United States of
America is pledged, or funds consisting solely of such securities, including
funds managed by the Trustee or one of its Affiliates (including such funds for
which it or its Affiliates receives fees in connection with such management).
3
SECTION 1.02 OTHER DEFINITIONS.
TERM DEFINED IN SECTION
"Bankruptcy Law" 6.01
"Conversion Agent" 2.03
"Custodian" 6.01
"Defaulted Interest" 2.13
"Event of Default" 6.01
"Legal Holiday" 12.06
"Notice" 12.01
"Officer" 12.09
"Paying Agent" 2.03
"Registrar" 2.03
SECTION 1.03 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term defined in Sections 1.01 or 1.02 has the
meaning assigned to it therein, and terms defined in
the TIA have the meanings assigned to them in the
TIA;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally
accepted accounting principles in the United States;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words
in the plural include the singular;
(5) provisions apply to successive events and
transactions;
(6) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(7) "including" means including without limitation.
SECTION 1.04 TRUST INDENTURE ACT.
The provisions of TIA ss. ss. 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture
upon and so long as the Indenture and Securities are subject to the TIA. If any
provision of this Indenture limits, qualifies or conflicts with such duties, the
imposed duties shall control. If a provision of the TIA requires or permits a
4
provision of this Indenture and the TIA provision is amended, then the Indenture
provision shall be automatically amended to like effect.
Any reference to a requirement under the TIA shall only apply upon and
so long as the Indenture is qualified under and subject to the TIA.
ARTICLE 2
THE SECURITIES
SECTION 2.01 ISSUABLE IN SERIES; FORM AND DATING.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more Series. There shall be established in or pursuant to a Securities
Resolution, prior to the issuance of Securities of any Series:
(a) the title of the Series (which shall distinguish the
Series from all other securities);
(b) the price or prices (expressed as a percentage of the
aggregate principal amount thereof) at which the
Series will be issued;
(c) any limit upon the aggregate principal amount of the
Series that may be authenticated and delivered under
this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the
Series pursuant to this Article 2);
(d) the date or dates on which the principal of the
Series is payable;
(e) the rate or rates that may be fixed or variable at
which the Series shall bear interest, if any, or the
manner in which such rate or rates shall be
determined, the date or dates from which such
interest shall accrue, the interest payment dates on
which such interest shall be payable and the record
dates for the determination of Holders to whom
interest is payable;
(f) the place or places where the principal of and any
interest on the Series shall be payable, if other
than as provided herein;
(g) the currency or currencies in which the Series is
issued and payable;
(h) the conversion or exchange provisions applicable to
the Series;
(i) whether and upon what terms the Series will be
convertible into equity or debt securities of the
Company;
(j) the price or prices at which (if any), the period or
periods within which (if any) and the terms and
conditions upon which (if other than as provided
5
herein) the Series may be redeemed, in whole or in
part, at the option, or as an obligation, of the
Company;
(k) the obligation, if any, of the Company to redeem,
purchase or repay the Series, in whole or in part,
pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the price or
prices at which and the period and periods within
which and the terms and conditions upon which the
Series shall be redeemed, purchased or repaid
pursuant to such obligation;
(l) if other than denominations of $1,000 and any
multiple thereof, the denominations in which the
Series shall be issuable;
(m) whether the Series shall be issued in whole or in
part in the form of a global Security or Securities;
the terms and conditions, if any, upon which such
global Security or Securities may be exchanged in
whole or in part for other individual securities, and
the depositary for such global Security and
Securities;
(n) if other than the principal amount thereof, the
portion of the principal amount of the Series which
shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 6.02 hereof;
(o) any Events of Default with respect to the Series, if
not set forth herein;
(p) any additions or changes to, or deletions from, the
covenants set forth in Article 4 or the acceleration
provisions applicable to the Series;
(q) the provisions, if any relating to any security
provided for the Series;
(r) the Trustee for the Series;
(s) any other terms of the Series (which terms shall not
be inconsistent with the provisions of this
Indenture, but which may modify or delete any
provision of this Indenture with respect to such
Series; provided, however, that no such term may
modify or delete any provision hereof if imposed by
the TIA; and provided, further, that any modification
or deletion of the rights, duties or immunities of
the Trustee hereunder shall have been consented to in
writing by the Trustee).
All Securities of any Series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
Securities Resolution or in any such indenture supplemental hereto.
The principal of and any interest on the Securities of any Series shall
be payable at the office or agency of the Company designated in the form of
Security for the Series (each such place herein called the "Place of Payment");
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the address of the Person entitled thereto
6
as such address shall appear in the register of Securities for such Series
referred to in Section 2.03 hereof.
Each Security shall be in one of the forms approved from time to time
by or pursuant to a Securities Resolution, or established in one or more
indentures supplemental hereto. Prior to the delivery of a Security of any
Series to the Trustee for authentication in any form approved by or pursuant to
a Securities Resolution, the Company shall deliver to the Trustee the Securities
Resolution by or pursuant to which such form of Security for such Series has
been approved, which Securities Resolution shall have attached thereto a true
and correct copy of the form of Security for such Series that has been approved
by or pursuant thereto.
In addition to the foregoing, when the Company delivers Securities of
any Series executed by it to the Trustee for authentication, except as otherwise
provided herein, the Trustee shall thereupon authenticate and make available for
delivery said Securities upon the written order of the Company, which order
shall be in the form of a Company Order. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall receive, and shall be fully protected in
relying upon:
(a) an executed supplemental indenture, if any;
(b) an Officers' Certificate delivered in accordance with
Section 12.03; and
(c) an Opinion of Counsel which shall state:
(1) that the form of such Securities has been
established by a supplemental indenture or by or pursuant to a
resolution of the Board of Directors in accordance with
Section 2.01 and in conformity with the provisions of this
Indenture;
(2) that the terms of such Securities have been
established in accordance with Section 2.01 and in conformity
with the other provisions of this Indenture;
(3) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general
equity and public policy principles; and
(4) that all applicable laws and requirements in
respect of the execution and delivery by the Company of such
Securities have been complied with.
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
7
taken or if the Trustee in good faith shall determine that such action would
expose the Trustee to personal liability to existing Holders.
The Trustee's Certificate of Authentication shall be in substantially
the following form:
"This is one of the Securities of the Series described in the
within-mentioned Indenture.
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
As Trustee
By:
-------------------------------------
Authorized Signatory"
The Securities may have notations, legends or endorsements required by
Section 2.11, law, stock exchange rule, automated quotation system, agreements
to which the Company is subject, or usage. Each Security shall be dated the date
of its authentication.
SECTION 2.02 EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security is still valid.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate Securities of any Series for original
issue up to the limit, if any, specified in the Securities Resolution for the
Series amount stated.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities of any Series. An authenticating agent may
authenticate Securities of such Series whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company or an Affiliate.
SECTION 2.03 AGENTS.
The Company shall maintain an office or agency where Securities of a
particular Series may be presented for registration of transfer or for exchange
("Registrar"), where Securities of that Series may be presented for payment
("Paying Agent") and where Securities of that Series may be presented for
conversion to the extent and in the manner set forth in Article 10 ("Conversion
Agent"). Whenever the Company must issue or deliver Securities of a particular
Series pursuant to this Indenture, the Trustee shall authenticate the Securities
of that Series at the
8
Company's request. The Registrar of a particular Series shall keep a register of
the Series and of their transfer and exchange.
The Company may appoint more than one Registrar, Paying Agent or
Conversion Agent for any Series. The Company shall notify the Trustee of the
name and address of any Agent not a party to this Indenture. If the Company does
not appoint another Registrar, Paying Agent, or Conversion Agent for any Series,
the Trustee shall act as such.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
On or prior to each due date of the Principal and interest on any
Security of any Series, the Company shall deposit with the Paying Agent for such
Series a sum sufficient to pay such Principal and interest when so becoming due.
The Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent will hold in trust for the benefit of
Securityholders of the particular Series for which it is acting or the Trustee
all money held by the Paying Agent for the payment of the Principal of or
interest on the Securities of such Series and will notify the Trustee of any
Default by the Company in making any such payment and will comply with Article
11. While any such Default continues, the Trustee may require a Paying Agent of
such Series to pay all money held by it to the Trustee of such Series. The
Company at any time may require a Paying Agent of the particular Series for
which it is acting to pay all money held by it with respect to such Series to
the Trustee of such Series and to account for any funds disbursed by the Paying
Agent. Upon complying with this Section, the Paying Agent of such Series shall
have no further liability for the money delivered to the Trustee of such Series.
If the Company or any Affiliate acts as Paying Agent for any Series, it shall
segregate the money held by it as Paying Agent of such Series and hold it as a
separate trust fund.
SECTION 2.05 SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders separately by Series. If the Trustee is not the Registrar of any
Series, the Company shall furnish to the Trustee, in writing at least 10
Business Days before each interest payment date and at such other times as the
Trustee may request a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders of such Series.
SECTION 2.06 TRANSFER AND EXCHANGE.
The Securities shall be issued in registered form and shall be
transferable only upon surrender of a Security for registration of transfer.
When a Security of any Series is presented to the Registrar for such Series with
a request to register a transfer or to exchange them for an equal principal
amount of Securities of such Series of other denominations, the Registrar for
such Series shall register the transfer or make the exchange if its requirements
for such transactions are met and the Security of such Series has not been
redeemed. The Company may charge a reasonable fee for any registration of
transfer or exchange but not for any exchange pursuant to Section 2.10, 3.06 or
9.05.
9
All Securities issued upon any transfer or exchange pursuant to the
terms of this Indenture will evidence the same debt and will be entitled to the
same benefits under this Indenture as the Securities surrendered upon such
transfer or exchange.
Each Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Security in violation of any provision of this
Indenture and/or applicable United States Federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among depositary
participants or beneficial owners of interests in any global security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 2.07 REPLACEMENT SECURITIES.
(a) If any mutilated Security is surrendered to the Trustee,
the Company will execute and the Trustee will authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
(b) If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss, or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
protected purchaser, the Company will execute and the Trustee will authenticate
and deliver, in lieu of any such destroyed, lost, or stolen Security, a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
(c) In case any such mutilated, destroyed, lost, or stolen
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
(d) Upon the issuance of any new Security under this Section
2.07, the Company may require the payment of a sum sufficient to cover any tax,
assessment, fee 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.
(e) Every new Security of any series issued pursuant to this
Section 2.07 in exchange for any mutilated Security or in lieu of any destroyed,
lost, or stolen Security will constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost, or
stolen Security shall be at any time enforceable by anyone, and will
10
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
(f) The provisions of this Section 2.07 are exclusive and will
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost, or stolen Securities.
SECTION 2.08 OUTSTANDING SECURITIES.
Securities of any Series outstanding at any time are all Securities of
such Series authenticated by the Trustee of such Series except for those
canceled by the Registrar of such Series, those delivered to it for cancellation
and those described in this Section as not outstanding. A Security does not
cease to be outstanding because the Company or an Affiliate holds the Security;
PROVIDED, HOWEVER, that in determining whether the holders of the requisite
principal amount of outstanding Securities are present at a meeting of holders
of Securities for quorum purposes or have consented to or voted in favor of any
request, demand, authorization, direction, notice, consent, waiver, amendment or
modification hereunder, Securities held for the account of the Company, any of
its subsidiaries or any of its affiliates shall be disregarded and deemed not to
be outstanding, except that in determining whether the Trustee shall be
protected in making such a determination or relying upon any such quorum,
consent or vote, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Company receives proof satisfactory to it that the
replaced Security is held by a protected purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09 TREASURY SECURITIES DISREGARDED FOR CERTAIN PURPOSES.
In determining whether the Holders of the required Principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or an Affiliate shall be disregarded and deemed not to be
outstanding, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right to deliver any such direction, waiver or consent with respect to
the 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.
SECTION 2.10 TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may use
temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without
11
unreasonable delay, the Company shall deliver definitive Securities in exchange
for temporary Securities.
SECTION 2.11 GLOBAL SECURITIES.
The Company may issue some or all of the Securities of any Series in
temporary or permanent global form. The Company may issue a global Security of
any Series only to a depository. A depository may transfer a global Security of
any Series only to its nominee or to a successor depository. A global Security
of any Series shall represent the amount of Securities of such Series specified
in the global Security. A global Security of any Series may have variations that
the depository requires or that the Company considers appropriate for such a
security.
Beneficial owners of part or all of a global Security of any Series are
subject to the rules of the depository as in effect from time to time.
The Company, the Trustee and the Agents shall not be responsible for
any acts or omissions of a depository, for any depository records of beneficial
ownership interests or for any transactions between the depository and
beneficial owners.
SECTION 2.12 CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Paying Agent and Conversion Agent, if not the Trustee, shall
forward to the Trustee any Securities surrendered to them for payment or
conversion. The Trustee shall cancel all Securities surrendered for registration
of transfer, exchange, payment, conversion or cancellation and shall dispose of
canceled Securities according to its standard procedures or as the Company
otherwise directs. The Company may not issue new Securities to replace
Securities that it has paid or which have been delivered to the Trustee for
cancellation or that any Securityholder has converted.
SECTION 2.13 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Securities of
any Series ("Defaulted Interest") such Defaulted Interest shall cease to be
payable to the Securityholder of such Series on the relevant record date and
shall be paid by the Company, at its election, under either (1) or (2) below:
(1) The Company may pay the Defaulted Interest together
with interest thereon to the Persons which are
Securityholders of such Series on a subsequent
special record date. The Company shall notify the
Trustee of such Series of the amount of Defaulted
Interest together with interest thereon to be paid
and pay over such amount to the Trustee of such
Series. The Trustee of such Series shall then fix a
special record date and at the Company's expense
shall notify Securityholders of such Series not less
than 10 days prior to such special record date of the
proposed payment, of the special record date, and of
the payment date.
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(2) The Company may make payment of Defaulted Interest
together with interest thereon in any lawful manner
not inconsistent with the requirements of any
securities exchange or automated quotation system on
which the Securities of such Series may be listed or
designated for issuance. The Company shall give
prompt notice to the Trustee and Securityholders of
such Series that it intends to make payment pursuant
to this Section 2.13(2) and of the special record
date of the proposed payment, and of the payment
date.
SECTION 2.14 PERSONS DEEMED OWNERS.
Prior to the due presentment of a Security for registration of
transfer, the Company, the Trustee, and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and any
premium and, subject to Section 2.13, any interest on such Security and for all
other purposes whatsoever, whether or not such Security shall be overdue, and
neither the Company, the Trustees nor any agent of the Company or the Trustee
will be affected by notice to the contrary. None of the Company, the Trustee or
any Agent shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of any Security in global form,
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. However, nothing herein shall prevent the
Company or the Trustee, or any Agent, from giving effect to: (i) any written
certification, proxy or other authorization furnished by any depository or its
nominee, as a Holder, with respect to such Security in global form; and (ii) the
operation of customary practices governing the exercise of the rights of such
depository as Holder of such Security in global form.
SECTION 2.15 CUSIP NUMBERS.
The Company in issuing any series of the Securities may use CUSIP
numbers, if then generally in use, and thereafter with respect to such series,
the Trustee may use such numbers in any notice of redemption or exchange with
respect to such series 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 in
writing of any change in the CUSIP numbers.
ARTICLE 3
REDEMPTION
SECTION 3.01 NOTICE TO TRUSTEE.
If Securities of any Series are to be redeemed, the Company shall
notify the Trustee of the redemption date, the Principal amount of Securities of
such Series to be redeemed and the provision of the Series permitting or
requiring the redemption.
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The Company may reduce the Principal amount of Securities of any Series
required to be redeemed pursuant to the provisions of such Series if it notifies
the Trustee of the amount of the credit and the basis for it by delivery of an
Officers' Certificate. If the reduction is based on a credit for redeemed,
converted or canceled Securities that the Company has not previously delivered
to the Trustee for cancellation, the Company shall deliver such Securities to
the Registrar before the selection of securities to be redeemed.
The Company shall give each notice provided for in this Section at
least 50 days before the redemption date unless a shorter period is satisfactory
to the Trustee. If fewer than all the Securities of any Series are to be
redeemed, the record date relating to such redemption shall be selected by the
Company and given to the Trustee, which record date shall be not less than 15
days prior to the redemption date.
SECTION 3.02 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any Series are to be redeemed, the
Trustee shall select the Securities of such Series to be redeemed by a method
that complies with the requirements, if any, of any stock exchange on which the
Securities of such Series are listed and that the Trustee considers fair and
appropriate, which may include selection pro rata or by lot. The Trustee shall
make the selection from Securities of such Series outstanding not previously
called for redemption. The Trustee may select for redemption portions of the
Principal of Securities of such Series that have denominations larger than
$1,000. Securities and portions thereof selected by the Trustee shall be in
amounts of $1,000 or whole multiples of $1,000. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.
SECTION 3.03 NOTICE OF REDEMPTION.
Except as may be otherwise provided as to any particular Series, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption to each Holder whose Securities are to be
redeemed.
The notice shall state that it is a notice of redemption, identify the
Securities of the Series to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent and
Conversion Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
redemption price;
(5) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited
from making such payment pursuant to the terms of
this Indenture, interest on Securities (or portion
thereof) called for redemption ceases to accrue on
and after the redemption date; and
14
(6) list the CUSIP number of the Series of Securities and
state that no representation is made as to the
correctness or accuracy of the CUSIP number, if any,
listed in such notice or printed on the Securities.
At the Company's request, in the form of a Company Order and Officers'
Certificate, the Trustee shall give the notice of redemption in the Company's
name and at its expense.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date at the redemption price. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date.
Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with the
Paying Agent (or, if the Company or any Affiliate is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of,
and accrued interest on, all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which have been
delivered by the Company to the Registrar for cancellation. The Paying Agent
shall return to the Company any money not required for that purpose because of
conversion of Securities.
Unless the Company shall default in the payment of Securities (and
accrued interest) called for redemption, interest on such Securities shall cease
to accrue after the redemption date.
SECTION 3.06 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company
shall deliver to the Holder (at the Company's expense) a new Security of the
same Series equal in Principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF SECURITIES.
The Company shall pay the Principal of and interest on the Securities
of any Series on the dates and in the manner provided in the Securities of such
Series and this Indenture. Principal and interest shall be considered paid on
the date due if the Paying Agent holds in accordance with this Indenture, by
11:00 a.m. New York time, on that date money sufficient to pay all Principal and
interest then due and the Paying Agent is not prohibited from paying such money
to the Holders of such Series on such date pursuant to the terms of this
Indenture.
15
The Company shall pay interest on overdue Principal of any Series at
the rate borne by the Securities of any Series; it shall pay interest on overdue
Defaulted Interest at the same rate to the extent lawful.
SECTION 4.02 SEC REPORTS.
The Company shall file with the Trustee within 15 days after it files
them with the SEC copies of the annual reports and of the information,
documents, and other reports which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. The Company will cause any
quarterly and annual reports which it makes available to its stockholders to be
mailed to the Holders. The Company will also comply with the other provisions of
TIA ss. 314(a). 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 notice or constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 4.03 COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee annually, commencing
_____________, within 105 days after the end of each fiscal year of the Company,
a brief certificate signed by the principal executive officer, principal
financial officer or principal accounting officer of the Company, as to the
signer's knowledge of the Company's compliance with all conditions and covenants
contained in this Indenture (determined without regard to any period of grace or
requirement of notice provided herein).
SECTION 4.04 NOTICE OF CERTAIN EVENTS.
The Company shall give prompt written notice to the Trustee and any
Paying Agent with respect to any Series of (i) any Proceeding, (ii) any Default
or Event of Default, (iii) any cure or waiver of any Default or Event of
Default, and (iv) if and when the Securities of such Series are listed on any
stock exchange.
ARTICLE 5
SUCCESSORS
SECTION 5.01 WHEN COMPANY MAY MERGE, ETC.
Except as may otherwise be provided as to any particular Series, the
Company shall not consolidate or merge with or into, or transfer all or
substantially all of its assets to, any Person unless:
(1) either the Company shall be the resulting or
surviving entity or such person is a corporation
organized and existing under the laws of the United
States, a State thereof or the District of Columbia
[or under the laws of Canada or any province
thereof];
16
(2) if the Company is not the resulting or surviving
entity, such Person assumes by supplemental indenture
all the obligations of the Company under the
Securities and this Indenture; and
(3) immediately before and immediately after the
transaction no Default exists.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officers' Certificate and an Opinion of Counsel, each of which
shall state that such consolidation, merger or transfer and such supplemental
indenture comply with this Article 5 (other than as to compliance with Section
5.01(3), as to which no opinion need be given in the Opinion of Counsel) and
that all conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.01,
the successor corporation formed by such consolidation or into which the Company
is merged or to which such transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
and the Securities with the same effect as if such successor corporation had
been named as the Company herein and in the Securities. Thereafter the
obligations of the Company under the Securities and Indenture shall terminate
except for the obligation to pay the Principal of and interest on the Securities
in the case of a transfer.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
An "Event of Default" occurs with respect to Securities of any
particular Series if, unless in the establishing Securities Resolution or
supplemental indenture for such Series it is provided that such Series shall not
have the benefit of said Event of Default:
(1) the Company Defaults in the payment of interest on
any Security of that Series when the same becomes due
and payable and such Default continues for a period
of 30 days;
(2) the Company Defaults in the payment of the Principal
of any Security of that Series when the same becomes
due and payable at maturity, upon redemption or
otherwise;
(3) the Company fails to comply with any of its other
agreements in the Securities of that Series or this
Indenture with respect to that Series and such
failure continues for the period and after the notice
specified below;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law:
17
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian
of it or for all or substantially all of its
property, or
(D) makes a general assignment for the benefit
of its creditors;
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case,
(B) appoints a Custodian of the Company or for
all or substantially all of its property, or
(C) orders the liquidation of the Company, and
the order or decree remains unstayed and in
effect for 60 days; or
(6) an Event of Default provided in the establishing
Securities Resolution or supplemental indenture for
that Series occurs.
The foregoing will constitute Events of Default whatever the reason for
any such Event of Default, whether it is voluntary or involuntary, or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (3) is not an Event of Default until the Trustee
or the Holders of at least 25% in Principal amount of the Securities of that
Series notify the Company and the Trustee of that Series of the Default and the
Company does not cure the Default, or it is not waived, within 60 days after
receipt of the notice. The notice must specify the Default, demand that it be
remedied to the extent consistent with law, and state that the notice is a
"Notice of Default".
SECTION 6.02 ACCELERATION.
If an Event of Default with respect to any Series occurs and is
continuing (other than an Event of Default arising under 6.01(4) or (5)), the
Trustee by notice to the Company, or the Holders of at least 25% in Principal
amount of the Series by notice to the Company and the Trustee of that Series,
may declare the Principal of and accrued interest on all the Securities of such
Series to be due and payable. Upon such declaration the Principal and interest
shall be due and payable immediately.
18
If an Event of Default under Section 6.01(4) or (5) occurs, then the
principal of, premium, if any, and accrued interest on the Securities shall
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided, the Holders of a majority in principal amount of the outstanding
Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if (i) the Company has
paid or deposited with the Trustee a sum sufficient to pay (A) all overdue
interest on all Securities of that series, (B) the principal of (and premium, if
any, on) any Securities of that series which have become due otherwise than by
such declaration of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities, (C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and (D) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses, disbursements, and
advances of the Trustee and its agents and counsel and (ii) all Events of
Default with respect to Securities of that series, other than the nonpayment of
the principal of Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided herein. No
such rescission will affect any subsequent default or impair any right
consequent thereon.
SECTION 6.03 OTHER REMEDIES.
If an Event of Default occurs with respect to any Series and is
continuing, the Trustee may pursue any available remedy to collect the payment
of Principal or interest on the Securities of such Series or to enforce the
performance of any provision of the Securities of such Series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities of such Series or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 6.04 WAIVER OF PAST DEFAULTS.
The Holders of a majority in Principal amount of the Securities of any
Series by notice to the Trustee may waive an existing Default with respect to
that Series and its consequences except:
(1) a Default in the payment of the Principal of or
interest on any Security of such Series; or
(2) a Default with respect to a provision that under
Section 9.02 cannot be amended without the consent of
each Securityholder of such Series affected.
19
SECTION 6.05 CONTROL BY MAJORITY.
The Holders of a majority in Principal amount of the Securities of any
Series may direct the time, method and place of conducting any proceeding for
any remedy of any Series available to the Trustee or exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, is unduly prejudicial to
the rights of other Securityholders of such Series, or would involve the Trustee
in personal liability or expense for which the Trustee has not received a
satisfactory indemnity therefor.
SECTION 6.06 LIMITATION ON SUITS.
A Securityholder of such Series may pursue a remedy with respect to
this Indenture or the Securities with respect to that Series only if:
(1) the Holder gives to the Trustee notice of a
continuing Event of Default;
(2) the Holders of at least 25% in Principal amount of
the Securities of such Series make a request to the
Trustee to pursue the remedy;
(3) the Trustee either (i) gives to such Holders notice
it will not comply with the request, or (ii) does not
comply with the request within 60 days after receipt
of the request;
(4) the Holders of a majority in Principal amount of the
Securities of such Series do not give the Trustee a
direction inconsistent with the request prior to the
earlier of the date, if ever, on which the Trustee
delivers a notice under Section 6.06(3)(i) or the
expiration of the period described in Section
6.06(3)(ii); and
(5) 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.
A Securityholder of any Series may not use this Indenture to prejudice
the rights of another Securityholder of such Series or to obtain a preference or
priority over another Securityholder of such Series.
SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security of any Series to receive payment of Principal and interest
on the Security of such Series, on or after the respective due dates expressed
in the Security of such Series, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder.
Nothing in this Indenture limits or defers the right or ability of
Holders to petition for commencement of a case under applicable Bankruptcy Law
to the extent consistent with such Bankruptcy Law.
20
SECTION 6.08 PRIORITIES.
After an Event of Default of any Series any money or other property
distributable in respect of the Company's obligations under this Indenture shall
be paid in the following order:
First: to the Trustee (including any predecessor
Trustee) for amounts due under Section 7.07;
Second: to Securityholders for amounts due and unpaid
on the Securities of such Series for Principal and interest,
ratably, without preference or priority of any kind, according
to the amounts due and payable on the Securities of such
Series for Principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders of any Series.
SECTION 6.09 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in Principal
amount of the Securities of any Series.
SECTION 6.10 PROOF OF CLAIM.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements,
and advances of the Trustee, its agents and counsel) and the Holders allowed in
any judicial proceeding relative to the Company, their creditors or their
property and shall be entitled and empowered to collect and receive any monies
or other property payable or deliverable on any such claim and to distribute the
same, and any custodian in any such judicial proceedings is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements, and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee hereunder. Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt
on behalf of any Securityholder of any Series any plan of reorganization,
arrangement, adjustment, or composition affecting the Securities of any Series
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder of any Series in any Proceeding.
21
ARTICLE 7
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, 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 its own
affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties
that are specifically set forth in this
Indenture and no others, and 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 they conform to the
requirements of this Indenture (but need not
confirm or investigate the accuracy of
mathematical calculations or other facts
stated therein).
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) 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 is proved
that the Trustee was negligent in
ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect
to any action it takes or omits to take in
good faith in accordance with a direction
received by it pursuant to Section 6.05.
(4) The Trustee may refuse to perform any duty
or exercise any right or power which would
require it to expend its own funds or risk
22
any liability if it shall reasonably believe
that repayment of such funds or adequate
indemnity against such risk is not
reasonably assured to it.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree
with the Company. Money held in trust by the Trustee
need not be segregated from other funds except to the
extent required by law.
(f) The Trustee agrees to accept and act upon facsimile
transmission of written instructions or directions
pursuant to this Indenture, it being understood that
originals of such shall be provided to the Trustee in
a timely manner.
SECTION 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon on
any document believed by it to be genuine and to have
been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of
Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in
reliance on the Officers' Certificate or an Opinion
of Counsel. The Trustee may also consult with counsel
of its selection on any matter relating to the
Indenture or the Securities and the Trustee shall not
be liable for any action it takes or omits to take in
good faith in reliance on the advice of counsel.
(c) The Trustee may act through agents and attorneys and
shall not be responsible for the misconduct or
negligence of any agent or attorney appointed with
due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it
believes to be authorized or within its rights or
powers.
(e) Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company
Order and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution.
(f) 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,
conclusively rely upon an Officers' Certificate.
23
(g) 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.
(h) 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
reasonable inquiry or investigation into such facts
or matters as it may determine in good faith, and, if
the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to
examine the relevant books, records and premises of
the Company, personally or by agent or attorney
during regular business hours at the sole cost of the
Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or
investigation.
(i) In no event shall the Trustee be responsible or
liable for special, indirect, or consequential loss
or damage of any kind whatsoever (including, but not
limited to, loss of profit) irrespective of whether
the Trustee has been advised of the likelihood of
such loss or damage and regardless of the form of
action.
(j) The Trustee shall not be deemed to have notice 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.
(k) 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 each agent,
custodian and other Person employed to act hereunder.
(l) The Trustee may request that the Company deliver a
certificate setting forth the names of individuals
and/or titles of officers authorized at such time to
take specified actions pursuant to this Indenture.
[NOTE: THIS "FORWARD-LOOKING" INCUMBENCY CERTIFICATE
FUNCTIONS LIKE A SIGNATURE CARD, WHICH THE BANK
OFFICER MAY KEEP ON FILE AND REFER TO THROUGHOUT THE
LIFE OF THE TRANSACTION. A FORM OF SUCH INCUMBENCY
CERTIFICATE IS ATTACHED HERETO FOR YOUR CONVENIENCE.]
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(m) In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of
its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its
control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss
or malfunctions of utilities, communications or
computer (software and hardware) services; it being
understood that the Trustee shall use reasonable
efforts which are consistent with accepted practices
in the banking industry to resume performance as soon
as practicable under the circumstances.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE; DISQUALIFICATION.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to TIA ss.
310(b) and ss. 311.
SECTION 7.04 TRUSTEE'S DISCLAIMER.
The Trustee shall have no responsibility for the validity or adequacy
of this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities and it shall not be
responsible for any statement in the Securities other than its authentication.
SECTION 7.05 NOTICE OF DEFAULTS.
If a continuing Default of any Series is known to the Trustee, the
Trustee shall mail to Securityholders of such Series a notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment on
any Security of any Series, the Trustee may withhold the notice if and so long
as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Securityholders of such Series.
The Trustee shall mail to Securityholders of any applicable Series any notice it
receives from Securityholder(s) of such Series under Section 6.06, and of any
notice the Trustee provides pursuant to Section 6.06(3)(1).
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS.
If required pursuant to TIA ss. 313(a), within 60 days after the
reporting date stated in Section 12.09, the Trustee shall mail to
Securityholders of any Series a brief report dated as of such reporting date
that complies with TIA ss. 313(a). The Trustee also shall comply with TIA ss.
313(b)(2).
A copy of each report at the time of its mailing to Securityholders of
any Series shall be filed with the SEC and each stock exchange on which the
Securities of such Series are listed.
25
SECTION 7.07 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation for its services, including for any Agent capacity in which it
acts, as the parties shall agree from time to time. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses, disbursements and advances made or incurred by it. Such
expenses shall include the reasonable compensation and out-of-pocket expenses of
the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor
Trustee and their agents for, and hold them harmless against, any and all loss,
liability, claim, damage or expense, including taxes (other than taxes based on
the income of the Trustee) arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim (whether asserted by the Company,
any Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder or in connection with
enforcing the provisions of this Section. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not unreasonably be withheld.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence, willful misconduct
or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay Principal and
interest on particular Securities.
Without prejudice to its rights hereunder, when the Trustee incurs
expenses or renders services after an Event of Default specified in Section
6.01(4) or (5) occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law.
This Section 7.07 shall survive the discharge of the Indenture.
SECTION 7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee with respect to one or more or
all Series and appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section.
The Trustee may resign with respect to one or more or all Series by so
notifying the Company. The Holders of a majority in Principal amount of the
Securities of any Series may remove the Trustee as to that Series by so
notifying the Trustee and the Company. The Company may remove the Trustee with
respect to one or more or all Series if:
26
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If, as to any Series, the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly
appoint a successor Trustee for that Series.
If a successor Trustee for such Series is not appointed and does not
take office within 30 days after the retiring Trustee for such Series resigns,
the retiring Trustee for such Series or the Company may appoint a successor
Trustee for such Series at any time prior to the date on which a successor
Trustee takes office for such Series. If a successor Trustee for such Series
does not take office within 45 days after the retiring Trustee for such Series
resigns or is removed, the retiring Trustee for such Series, the Company or,
subject to Section 6.09, any Securityholder of such Series may petition any
court of competent jurisdiction, at the expense of the Company, for the
appointment of a successor Trustee for such Series.
If, as to any Series, the Trustee fails to comply with Section 7.10,
any Securityholder of such Series may petition any court of competent
jurisdiction for the removal of the Trustee for such Series and the appointment
of a successor Trustee for such Series. Within one year after a successor
Trustee for such Series appointed pursuant to this Section 7.08 takes office,
the Holders of a majority in Principal amount of the Securities for such Series
may appoint a successor Trustee for such Series to replace such successor
Trustee for such Series.
A successor Trustee as to any Series shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture as to that Series. The successor Trustee as to any Series
shall mail a notice of its succession to Securityholders of such Series. The
retiring Trustee as to any Series shall promptly transfer all property held by
it as Trustee of such Series to the successor Trustee of such Series, subject to
the lien provided for in Section 7.07.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee for any Series consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee of such Series, if such successor corporation is eligible and
qualified under Section 7.10.
SECTION 7.10 ELIGIBILITY.
Each Series shall always have a Trustee who satisfies the requirements
of TIA ss. 310(a)(1) and ss. 310(a)(2). The Trustee for such Series shall always
have a combined capital and surplus as stated in Section 12.09.
27
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
Upon and so long as the Indenture is qualified under the TIA, the
Trustee as to any Series is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee as to any Series who has
resigned or been removed is subject to TIA ss. 311(a) to the extent indicated.
ARTICLE 8
SATISFACTION AND DISCHARGE
SECTION 8.01 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of conversion, registration of transfer or exchange of
Securities expressly provided for herein), and the Trustee, on demand of and at
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than
(i) Securities which have been
destroyed, lost or stolen and which
have been replaced or paid as
provided in Section 2.07 and
(ii) Securities for whose payment money
has theretofore been deposited in
trust or segregated and held in
trust by the Company and thereafter
repaid to the Company or discharged
from such trust, as provided in
Section 8.04)
have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
stated maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the
giving of notice of redemption by
the Trustee in the name, and at the
expense, of the Company,
and the Company in the case of (i), (ii),
and (iii) above, has deposited or caused to
be deposited with the Trustee as trust funds
28
in trust for the purpose an amount of money
or U.S. Government Obligations sufficient to
pay and discharge the entire indebtedness on
such Securities not theretofore delivered to
the Trustee for cancellation, for Principal
and interest to the date of such deposit (in
the case of Securities which have become due
and payable) or to the stated maturity or
redemption date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for
relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Holders under Section 4.01, to the Trustee
under Section 7.07, and, if money or U.S. Government Obligations shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 8.02 shall survive.
SECTION 8.02 APPLICATION OF TRUST FUNDS.
Subject to the provisions of Section 8.04, the Trustee or Paying Agent
shall hold in trust, for the benefit of the Holders, all money and U.S.
Government Obligations deposited with it (or into which such money and U.S.
Government Obligations are reinvested) pursuant to Section 8.01. It shall apply
such deposited money and money from U.S. Government Obligations in accordance
with this Indenture to the payment of the Principal and interest on the
Securities. Money and U.S. Government Obligations so held in trust are subject
to the Trustee's rights under Section 7.07.
SECTION 8.03 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Obligations in accordance with Section 8.01 by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8, until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 8.01; provided, however, that if the
Company makes any payment of Principal of or interest on any Security following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
or U.S. Government Obligations held by the Trustee or Paying Agent after payment
in full to the Holders.
SECTION 8.04 REPAYMENT TO COMPANY.
The Trustee and Paying Agent shall promptly turn over to the Company
upon request any excess money or U.S. Government Obligations held by them at any
time. All money or U.S.
29
Government Obligations deposited with the Trustee pursuant to Section 8.01 (and
held by it or a Paying Agent) for the payment of Securities subsequently
converted shall be returned to the Company upon request.
The Trustee and the Paying Agent shall pay to the Company upon request
any money held by them for payment of Principal or interest that remains
unclaimed for two years after the right to such money has matured. After payment
to the Company, Securityholders entitled to the money shall look to the Company
for payment as unsecured general creditors unless an abandoned property law
designates another Person.
ARTICLE 9
AMENDMENTS
SECTION 9.01 WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee as to any Series may amend this Indenture
or the Securities of such Series without the consent of any Securityholder of
such Series:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Sections 5.01;
(3) to make any change that does not adversely affect the
rights of any Securityholder; or
(4) to establish additional Series as permitted by ss.
ss. 201 hereof.
SECTION 9.02 WITH CONSENT OF HOLDERS.
The Company and the Trustee of such Series may amend this Indenture or
the Securities of such Series with the written consent of the Holders of at
least a majority in Principal amount of the Securities of such Series. However,
without the consent of each Securityholder affected, an amendment under this
Section may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment;
(2) reduce the interest on or change the time for payment
of interest on any Security;
(3) reduce the Principal of or change the fixed maturity
of any Security;
(4) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may
or shall be redeemed;
(5) make any Security payable in money other than that
stated in the Security;
(6) make any change in Section 6.04, 6.07 or 9.02 (second
sentence);
30
(7) make any change that adversely affects the right to
convert any Security; or
(8) make any change that adversely affects the preference
or priority of the Security.
An amendment or waiver under this Section that waives, changes or
eliminates any covenant or other provision of this Indenture that has expressly
been included solely for the benefit of one or more particular Series, or that
modifies the rights of the Holders of Securities of such Series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other Series.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT AND SECTION 12.03.
Every amendment to this Indenture or the Securities shall comply with
the TIA as then in effect, so long as the Indenture and Securities are subject
to the TIA. The Trustee is entitled to, and the Company shall provide an Opinion
of Counsel and Officers' Certificate that the Trustee's execution of any
amendment or supplemental indenture is permitted under this Article 9.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS AND WAIVERS.
A consent to an amendment or a waiver by a Holder of a Security shall
bind the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same debt as the consenting Holder's Security, even
if notation of the consent or waiver is not made on the Security. However, any
such Holder or subsequent Holder may revoke the consent or Waiver as to such
Holder's Security or portion of the Security if the Trustee receives the notice
of revocation before the date the amendment or waiver becomes effective. After
an amendment or waiver becomes effective, it shall bind every Securityholder of
any Series to which the amendment of waiver applies.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Securityholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or take
any such action, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 120 days
after such record date.
SECTION 9.05 NOTICE OF AMENDMENT; NOTATION ON OR EXCHANGE OF
SECURITIES.
After any amendment under this Article becomes effective, the Company
shall mail to Securityholders of any Series affected a notice briefly describing
such amendment. The failure
31
to give such notice to all Securityholders of such Series, or any defect
therein, shall not impair or affect the validity of an amendment under this
Article.
The Company or the Trustee may place an appropriate notation about an
amendment or waiver on any Security of any Series affected thereafter
authenticated. The Company may issue in exchange for affected Securities of such
Series new Securities of such Series that reflect the amendment or waiver.
SECTION 9.06 TRUSTEE PROTECTED.
The Trustee need not sign any supplemental indenture that adversely
affects its rights.
ARTICLE 10
CONVERSION
SECTION 10.01 TO BE SUPPLEMENTED.
If a Series is to be convertible into common shares or other securities
of the Company, then the Company and the Trustee may enter into a supplemental
indenture setting forth the conversion rights of the Holders of such Series.
ARTICLE 11
SUBORDINATION
SECTION 11.01 TO BE SUPPLEMENTED.
If a Series is to be subordinated to other debt securities of the
Company, then the Company and the Trustee may enter into a supplemental
indenture setting forth the provisions governing such subordination.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01 NOTICES.
Any notice by one party to the other shall be in writing and sent to
the other's address stated in Section 12.09. The notice is duly given if it is
delivered in Person or sent by a national courier service which provides next
Business Day delivery or by first-class mail or facsimile.
A party by notice to the other party may designate additional or
different addresses for subsequent notices.
Any notice sent to a Securityholder shall be sent by facsimile or
mailed by first-class letter mailed to its address shown on the register kept by
the Registrar. Failure to send a notice to a Securityholder or any defect in a
notice sent to a Securityholder shall not affect the sufficiency of the notice
sent to other Securityholders.
32
If a notice is delivered or sent in the manner provided above within
the time prescribed, it is duty given, whether or not the addressee receives it;
provided, however, that all notices to the Trustee shall be effective only upon
actual receipt.
If the Company sends a notice to Securityholders of any Series, it
shall deliver or mail a copy to the Trustee of such Series and each Agent of
such Series at the same time.
A "notice" includes any communication required by this Indenture.
SECTION 12.02 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, and Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 12.03 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been
complied with.
SECTION 12.04 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each Person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the
statements or opinions contained in such certificate
or opinion are based;
(3) a statement that, in the opinion of such Person, he
has made such examination or investigation as is
necessary to enable him to express an informed
opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been
complied with.
33
SECTION 12.05 RULES BY TRUSTEE AND AGENTS.
The Trustee with respect to any Series may make reasonable rules for
action by or a meeting of Securityholders of such Series. The Agent with respect
to any Series may make reasonable rules and set reasonable requirements for its
functions.
SECTION 12.06 LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York and California are not required to be open. If a
payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 12.07 NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the indenture or for any claim based on, in respect of or by
reason of such obligations or their creation.
SECTION 12.08 DUPLICATE ORIGINALS.
The parties may sign any number of copies, and may execute such in
counterparts, of this Indenture. One signed copy is enough to prove this
Indenture.
SECTION 12.09 VARIABLE PROVISIONS.
"Officer" means the President, the Chief Financial Officer, any
Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
The Company initially appoints the Trustee as Registrar, Paying Agent
and Conversion Agent.
The first certificate pursuant to Section 4.03 shall be for the fiscal
year ending on December 31 next following the first date any Series is
outstanding under this Indenture.
The reporting date for Section 7.06 is May 15 of each year. The first
reporting date is May 15 next following the first date any Series is outstanding
under this Indenture.
The Trustee shall always have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. The Trustee will be deemed to be in compliance with the capital and
surplus requirement set forth in the preceding sentence if its obligations are
guaranteed by a Person which could otherwise act as Trustee, hereunder and which
meets such capital and surplus requirement and the Trustee has at least the
minimum capital and surplus required by TIA ss. 310(a)(2).
In determining whether the Trustee has a conflicting interest as
defined in TIA ss. 310(b)(I), the following is excluded: [___________________].
34
SECTION 12.10 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by the requisite number of such Holders in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments in sufficient quantity to comply with the requirements under this
Indenture 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 Holders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and 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 a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of registered Securities shall be proved by the
Register, and the ownership of bearer Securities, if any, may be proved by the
production of such bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, 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 depository, or
exhibited to it, the bearer Securities therein described.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
35
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
36
The Company's address is:
0000 X. Xxxxxxx Xxxxx, Xxxxx 000
Xxxxx x'Xxxxx, Xxxxx
00000-0000
Facsimile No.: 208-292-5509
Attention: Chief Financial Officer
The Trustee's address is:
The Bank of New York Trust Company, N.A.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: 000-000-0000
Attention: Corporate Trust Administration
SECTION 12.11 GOVERNING LAW.
The laws of the State of New York without regard to principles of
conflicts of law shall govern this Indenture and the Securities.
Dated: HECLA MINING COMPANY
By:
--------------------------------------
Name:
Title:
Dated: The Bank of New York Trust Company, N.A.,
Trustee
By:
--------------------------------------
Name:
Title:
37
