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INDENTURE
THIS INDENTURE, dated as of September 26, 1997, between DUSA
Pharmaceuticals, Inc., a corporation duly organized and existing under the laws
of the State of New Jersey (herein called the "Company"), having its principal
office at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx X0X 0X0, Xxxxxx,
and American Stock Transfer & Trust Co., a corporation duly organized and
existing under the laws of the State of New York, as Trustee (herein called the
"Trustee"), having its principal office at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
WITNESSETH:
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as this Indenture provides.
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the benefit of the other party and for the equal and proportionate
benefit of all Holders of the Securities, or series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions.
(a) For all purposes of this Indenture and any indenture
supplemental hereto, except as otherwise expressly provided or unless the
context otherwise requires:
(i) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as
well as the singular;
(ii) all other terms used herein which are defined in
the Trust Indenture Act or the Securities Act, either directly or by
reference therein, have (except as herein otherwise expressly provided
or unless the context otherwise expressly provided or unless the
context otherwise requires) the meanings assigned to them therein as in
force on the date of this Indenture;
(iii) all accounting terms not otherwise defined
herein have the meanings
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assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(iv) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
(b) Certain terms, used principally in Article Six, are
defined in that Article.
(c) The following terms have the following meanings:
(i) "Act", when used with respect to any Holder, has
the meaning specified in Section 1.4.
(ii) "Affiliate" of any specified Person means any
other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such
specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means
the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to
the foregoing.
(iii) "Authenticating Agent" means any Person
authorized by the Trustee to act on behalf of the Trustee to
authenticate Securities.
(iv) "Board of Directors" means either the board of
directors of the Company, the executive committee of such
board or any duly authorized committee of such board.
(v) "Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such
certification and delivered to the Trustee.
(vi) "Business Day" means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which
banking institutions in the city where the Trustee maintains
its Corporate Trust office are authorized or obligated by law
to close.
(vii) "Capitalized Lease Obligation" means
Indebtedness represented by obligations under a lease that is
required to be capitalized for financial reporting purposes in
accordance with generally accepted accounting principles and
the amount
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of such Indebtedness shall be the capitalized amount of such
obligations determined in accordance with such principles.
(viii) "Capital Stock" means any and all shares,
interests, participations or other equivalents (however
designated) or corporate stock.
(ix) "Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Securities Exchange Act of 1934, or, if at any time after
the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties
at such time.
(x) "Company" means the Person named as the "Company"
in the first paragraph of this Indenture until a successor
corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall
mean such successor corporation.
(xi) "Company Request" or "Company Order" means a
written request or order signed in the name of the Company by
its Chairman of the Board, President or a Vice President, and
by its Treasurer, an Assistant Controller, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
(xii) "Corporate Trust Office" means the principal
office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office
at the date of execution of this Indenture is located at 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(xiii) "Corporation" includes corporations,
associations, companies and business trusts.
(xiv) "Event of Default" has the meaning specified in
Section 5.1.
(xv) "Holder" or "Securityholder" or similar terms
means a Person in whose name a Security is registered in the
Security Register.
(xvi) "Indebtedness" means (A) any liability of any
person (1) for borrowed money, (2) evidenced by a note,
debenture or similar instrument (including a purchase money
obligation) given in connection with the acquisition of any
property or assets (other than inventory or similar property
acquired in the ordinary course of business), including
securities, or (3) for the payment of money relating to a
Capitalized Lease Obligation; (B) any liability of others
described in the preceding clause (A) which the person has
guaranteed or which is otherwise its legal liability; and (C)
any amendment, renewal, extension or refunding of any
liability of the types referred to
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in clauses (A) and (B) above.
(xvii) "Indenture" means this instrument as
originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions
hereof and shall include the terms of particular series of
Securities established as contemplated by Section 3.1.
(xviii) "Notes" means any Security of the series
designated "One Year Notes" issued under this Indenture and
pursuant to the Rights Agreement and substantially in the form
of Exhibit 1 hereto.
(xix) "Officers Certificate" means a certificate
signed by the Chairman of the Board, President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an
Assistant Secretary, of the Company, and delivered to the
Trustee.
(xx) "Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company and who shall be
acceptable to the Trustee.
(xxi) "Original Issue Date" of any Security (or any
portion thereof) means the earlier of (A) the date of such
Security or (B) the date of the first Security (or portion
thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or
substitution, provided, that the "Original Issue Date" for the
Notes shall be the first date on which any such Note is
issued.
(xxii) "Outstanding" when used with respect to
Securities or any series of Securities, means, as of the date
of determination, all Securities or all Securities of such
series, as the case may be, theretofore authenticated and
delivered under this Indenture, except:
(A) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(B) Securities, or portions thereof, for
whose payment or redemption money in the necessary
amount has been theretofore deposited with the
Trustee or any Paying Agent for the Holders of such
Securities; provided that, if such Securities are to
be redeemed prior to the maturity thereof, notice of
such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the
Trustee has been made; and
(C) Securities which have been paid pursuant
to Section 3.6 or in exchange for or in lieu of which
other Securities have been authenticated and
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delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to
it that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid
obligations of the Company; provided, however, that
in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have
given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any
such request, demand, authorization, direction
notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
(xxiiii) "Paying Agent" means any person authorized
by the Company to pay the principal of (and premium, if any)
or interest on any Securities on behalf of the Company.
(xxiv) "Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or association or
government or any agency or political subdivision thereof.
(xxv) "Predecessor Security" of any particular
Security means every previous Security evidencing all or a
portion of the same debt as that evidenced by such particular
Security, and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or
stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
(xxvi) "Redemption Date", when used with respect to
any Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
(xxvii) "Redemption Price", when used with respect to
any Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
(xxviii) "Responsible Officer", when used with
respect to the Trustee, means any officer in the Corporate
Trust Office or any other officer of the Trustee customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter,
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any other officer to whom such matter is referred because of
his knowledge or any familiarity with the particular subject.
(xxix) "Rights Agreement" means the Rights Agreement
dated as of September 26, 1997, between the Company and
American Stock Transfer & Trust
Co., as Rights Agent.
(xxx) "Securities" has the meaning stated in the
first recital of this Indenture and more particularly means
any securities authenticated and delivered under this
Indenture.
(xxxi) "Security Register" has the meaning specified
in Section 3.5.
(xxxii) "Senior Indebtedness" means, with respect to
the Securities of a series which are subordinated in
accordance with their terms as contemplated by Section 3.1,
the principal or interest on and other amounts due on or in
connection with (A) any Indebtedness of the Company designated
in accordance with Section 3.1 as ranking senior to the
Securities of that series, whether outstanding on the date of
this Indenture or hereafter created, incurred, assumed or
guaranteed in any manner by the Company or in effect
guaranteed by the Company through an agreement to purchase or
otherwise; and (B) deferrals, renewals, extensions or
refundings of, or amendments, modifications or supplements to,
Indebtedness of the kind described in the preceding clause
(A), unless, in the case of any particular Indebtedness,
deferral, renewal, extension, refunding, amendment,
modification or supplement, the instrument creating or
evidencing the same or the assumption or guarantee thereof
expressly provides that such Indebtedness, deferral, renewal,
extension, refunding, amendment, modification or supplement
shall not be senior in right of payment to the Securities of
that series.
(xxiiii) "Subsidiary" means a corporation more than
50% of the outstanding voting stock of which is owned,
directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company or by one or more other
Subsidiaries. For the purposes of this definition, "voting
stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as
no senior class or stock has such voting power by reason of
any contingency.
(xxxii) "Trustee" means the Person named as the
"Trustee" in the first paragraph of this Indenture until a
successor Trustee shall have become such with respect to one
or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall
mean and include each Person who is then a Trustee hereunder,
and if at any time there is more then one such Person,
"Trustee" shall mean and include each such Person, and
"Trustee", as used with respect to the Securities of any
series, shall mean the Trustee with respect to
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Securities of that series.
(xxiv) "Trust Indenture Act" means the Trust
Indenture Act of 1939 as amended, as in force at the date as
of which this instrument was executed, except as provided in
Section 9.5.
Section 1.2 Compliance Certificates and Opinions.
(a) Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and, if requested by the Trustee, an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
(b) Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied
with; and
(iv) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been
complied with.
Section 1.3. Form of Documents Delivered to Trustee.
(a) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
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(b) Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of, or
representations by, counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.4 . Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the 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 (subject to Section 6.1) 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 him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his 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 Securities shall be proved by the
Security Register.
(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.
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Section 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) The Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(b) The Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to the attention of its President at 000 Xxxxxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxx X0X 0X0, Xxxxxx, or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.6. Notice to Holders; Waiver.
(a) Where this Indenture provides for notices to Holders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier then the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
(b) In any case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification of every purpose hereunder.
Section 1.7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
Section 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only
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and shall not affect the construction hereof.
Section 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 1.12. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New Jersey.
Section 1.13. Legal Holidays.
In any case where the due date of interest on or principal of any
Security or the Redemption Date of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on such due date or Redemption Date; provided
that no interest shall accrue for the period from and after such prior date.
ARTICLE TWO
SECURITY FORMS
Section 2.1. Forms Generally.
(a) The Securities of each series and the Trustee's
certificate of authentication shall be in substantially the form set forth in
this Article (except that the Notes shall be substantially in the form set forth
in Exhibit 1 hereto), with the Trustee's certificate of authentication on the
face of the
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Security, or in such other form as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with any law or with any rules made
pursuant thereto or with any rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
to be necessary or appropriate, as evidenced by their execution of the
Securities.
(b) The definitive Securities shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Securities, as evidenced by
their execution of such Securities.
Section 2.2. Form of Face of Security.
Number [ ] $[ ]
[ ]% [Title of the Series of the Security]
DUSA Pharmaceuticals, Inc.
[ ]% [ ]%
Due Due
DUSA Pharmaceuticals, Inc., a corporation duly organized and existing
under the laws of the State of New Jersey (herein referred to as the "Company"),
for value received, hereby promises to pay to , or his or its registered
assigns, the principal sum of , at the office or agency of the Company
maintained for that purpose in , on , 19 , in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts, and to pay interest, on each
Interest Payment Date (as defined herein) on said principal sum at said office
or agency, in like coin or currency, at the rate per annum specified in the
title of this [indebtedness] from the Interest Payment Date, next preceding the
date of this [indebtedness] to which interest has been paid or duly provided
for, unless the date hereof is a date to which interest has been paid or duly
provided for, in which case from the date of this [indebtedness] or unless no
interest has been paid or duly provided for on the [indebtedness] since the
Original Issue Date (as defined in the Indenture referred to on the reverse
hereto) of this [indebtedness] then from such Original Issue Date, until payment
of said principal sum has been made or duly provided for. The interest so
payable on any Interest Payment Date will, subject to certain exceptions
provided in the Indenture, be paid to the person in whose name this Note is
registered at the close of business on the fifteenth day preceding such Interest
Payment Date (the "Record Date" corresponding to such Interest Payment Date),
whether or not such Interest Payment Date is a business day, and may, at the
option of the Company, be paid by check mailed to the registered address of such
person. Notwithstanding the foregoing, if the date hereof is after the Record
Date corresponding to an Interest Payment Date and before such Interest Payment
Date, this
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[indebtedness] shall bear interest from such Interest Payment Date. An "Interest
Payment Date" shall be the and of each year, until the principal
hereof is paid or made available for payment.
Reference is made to the further provisions of this [indebtedness] set
forth on the reverse hereto. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This [indebtedness] shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
or on behalf of the Trustee under such Indenture.
IN WITNESS WHEREOF, DUSA Pharmaceuticals, Inc. has caused this
instrument to be executed in its corporate name by the facsimile signatures of
its Chairman of the Board, its President or one of its Vice Presidents and its
Secretary and impressed or imprinted with its corporate seal or a facsimile
thereof.
Dated:
DUSA Pharmaceuticals, Inc.
By:
Title:
(SEAL)
ATTEST:
Title:
Section 2.3. Form of Reverse Side of Security.
DUSA Pharmaceuticals, Inc.
[ ]% [Title of Security ]
This [indebtedness] is one of a duly authorized issue of debentures,
notes or other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of September 26, 1997 (herein called
the "Indenture"), duly executed and delivered by the Company to American Stock
Transfer & Trust Co., Trustee (herein called the "Trustee"), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and Holders of the Securities.
The
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Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may as between different series
and within a given series mature at different times, may bear interest (if any)
at different rates, may be subject to different redemption provisions (if any),
may be subject to different sinking, purchase or analogous funds (if any), and
may otherwise vary as in the Indenture provided. This [indebtedness] is one of a
series designated as the [ ]% of (title of the series of the Security) the
Company, limited in aggregate principal amount to [ ].
Interest on the [indebtedness] shall be calculated on the basis of a
360-day year consisting of twelve 30-day months.
[Description of provisions of the series relating to redemption,
sinking fund, subordination or other permitted terms, if any.]
If an Event of Default, as defined in the Indenture, with respect to
the [indebtedness] of this series shall occur and be continuing, the principal
of the [indebtedness] of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than 80% in principal amount of the
Securities at the time Outstanding (as that term is defined in the Indenture) of
each series to be affected. The Indenture also contains provisions permitting
the Holders of 80% in aggregate principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this [indebtedness] shall be
conclusive and binding upon such Holder and upon all future Holders of this
[indebtedness] and of any Security issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this [indebtedness].
No reference herein to the Indenture and no provision of this
[indebtedness] or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this [indebtedness] at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this [indebtedness] is registrable in the Security
Register upon surrender of this [indebtedness] for registration of transfer at
the office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this [indebtedness] are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company, duly executed by the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new [indebtedness] of
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this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The [indebtedness] are issuable only in registered form without coupons
in denominations of [$10] and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the
[indebtedness] are exchangeable for a like aggregate principal amount of
[indebtedness] of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this [indebtedness] for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name this [indebtedness] is registered as the
owner hereof for all purposes, whether or not this [indebtedness] be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All capitalized terms used in this [indebtedness] and not defined
herein shall have the meanings assigned to them in the Indenture.
This [indebtedness] shall be deemed to be a contract made under the laws of the
State of New Jersey, and for all purposes shall be construed in accordance with
and governed by the laws of that state.
Section 2.4. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated pursuant to the
within-mentioned Indenture.
, as Trustee , as Trustee
OR
By By
Authorized Signatory As Authenticating Agent
By
Authorized Officer
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ARTICLE THREE
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
(b) The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the initial issuance of Securities of any series:
(i) the title of the Securities of the series (which
shall distinguish the Securities of the series from all other
Securities);
(ii) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6, or 11.7);
(iii) the date or dates on which the principal of the
Securities of the series is payable;
(iv) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from
which such interest shall accrue and the dates on which such
interest shall be payable and the record date for the interest
payable on any such interest date;
(v) the place or places, if any, in addition to New
York, New York where the principal of (and premium, if any)
and interest on Securities of the series shall be payable;
(vi) the period or periods within which, the price or
prices at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part,
at the option of the Company;
(vii) the obligation, if any, of the Company to
redeem purchase or repay Securities of the series pursuant to
any sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon
which Securities of the series shall be redeemed or purchased
or repaid, in whole or in part, pursuant to such obligation;
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(viii) if other than the principal amount thereof,
the portion of the principal amount of Securities of the
series which shall be payable upon declaration of acceleration
of the maturity thereof pursuant to Section 5.2;
(ix) the Indebtedness of the Company, if any, which
shall constitute Senior Indebtedness with respect to the
Securities of the series and the terms and conditions of that
subordination; and
(x) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
(c) All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution in any such indenture supplemental hereto.
(d) At the option of the Company, interest on the Securities
of any series that bears interest may be paid by mailing a check to the address
of the Person entitled thereto as such address shall appear in the Security
Register.
(e) If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
Section 3.2. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $10 and any integral multiple thereof.
Section 3.3. Execution, Authentication, Delivery and Dating.
(a) The Securities shall be executed on behalf of the Company
by its Chairman of the Board, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
(b) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
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(c) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order and subject to the provisions
hereof shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an opinion of
Counsel stating:
(i) if the form of such Securities has been
established by or pursuant to Board Resolution as permitted by
Section 2.1, that such form has been established in conformity
with the provisions of this Indenture;
(ii) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted by
Section 3.1, that such terms have been established in
conformity with the provisions of this Indenture; and
(iii) 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, fraudulent
conveyance, reorganization and other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
(d) The Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
(e) Each Security shall be dated the date of its
authentication.
(f) No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
Section 3.4. Temporary Securities.
(a) Pending the preparation of definitive Securities of any
series, the Company may
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execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
(b) If temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company designated by the Company
for that series, without charge to the Holder. Upon surrender for cancellations
of any one or more temporary Securities of any series the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
Section 3.5. Registration, Registration of Transfer and
Exchange.
(a) The Company shall cause to be kept at an office or agency
of the Company a register ( the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and transfers of Securities. The Trustee is hereby
initially appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
(b) Upon surrender for registration of transfer of any
Security of any series at the office or agency designated by the Company for
that series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and of a like
aggregate principal amount.
(c) At the option of the Holder, Securities of any series may
be exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
(d) All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
(e) Every Security presented or surrendered for registration
of transfer or exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and any registrar with respect to
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such series of Securities duly executed, by the Holder thereof or his attorney
duly authorized in writing.
(f) No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.6, or 11.7 not involving any transfer.
(g) The Company shall not be required:
(i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of that series selected for
redemption under Section 11.3 and ending at the close of
business on the day of such mailing, or
(ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed
in part.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
(a) If any mutilated Security is surrendered to the Company or
to the Trustee, the Company shall execute and the Trustee shall 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 either of
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 bona fide purchaser, the Company shall execute and upon its
request, the Trustee shall 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,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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(e) Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall 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 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7. Payment of Interest; Interest Rights Preserved.
(a) Interest on any Security which is payable, and is
punctually paid or duly provided for, on any interest payment date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the record date (as
hereinafter defined) for such interest payment notwithstanding the cancellation
of such Security upon the registration of transfer or exchange subsequent to the
record date and prior to such interest payment date; provided, however, that if
and to the extent that the Company shall default in the payment of the interest
due on such interest payment date, such defaulted interest shall be paid to the
Persons in whose names outstanding Securities are registered at the close of
business on a subsequent record date established by notice given by mail by and
on behalf of the Company to the Holders of Securities not less than 15 days
preceding such subsequent record date, such record date to be not less than 10
days preceding the date of payment of such defaulted interest. The term "record
date" as used in this Section 3.7 with respect to any regular interest payment
date shall mean such day preceding such interest payment date as may have been
established as the record date with respect to an interest payment date for
Securities of such series in a Board Resolution in accordance with Section 3.1
hereof. The Company may also make payment of any defaulted interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this sentence, such manner of payment shall be
deemed practicable by the Trustee.
(b) Subject to subsection (a) of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 3.8. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 3.7) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any
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agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 3.9. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it; provided, however, that if surrendered to
any Authenticating Agent, such Securities shall be promptly cancelled by such
Authenticating Agent and forwarded to the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company Order; provided, that the Trustee shall not
be required to dispose of Securities in a manner deemed impracticable by the
Trustee.
Section 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of 12 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of Indenture.
(a) This Indenture shall, upon Company Request, cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
(i) either
(A) all Securities theretofore authenticated
and delivered (other than (1) Securities which have
been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6 and (2)
Securities for whose payment money has theretofore
been deposited in trust and thereafter discharged
from such trust, as provided in Section 10.3) have
been delivered to the Trustee for cancellation; or
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(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(1) have become due an payable, or
(2) will become due and payable at
their stated maturity within one year, or
(3) 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
(1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee as
trust funds in trust for the purpose an
amount sufficient to pay and discharge the
entire indebtedness on such Securities not
theretofore delivered to the Trustee for
cancellation, for principal (and premium, if
any) and interest to the date of such
deposit (in the case of Securities which
have become due and payable) or to the
stated maturity or Redemption Date, as the
case may be;
(ii) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(iii) 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.
(b) In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Securities of all series as to which it is Trustee and if the other
conditions thereto are met. In the event there are two or more Trustees
hereunder, then the effectiveness of any such instrument shall be conditioned
upon the receipt of such instruments from all Trustees hereunder.
(c) Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.7, the
obligations of the Trustee to any Authenticating Agent under Section 6.14 and,
if money shall have been deposited with the Trustee pursuant to Subclause (B) of
Clause (i) of this Section, the obligations of the Trustee under Section 4.2 and
the last paragraph of Section 10.3, shall survive.
Section 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the
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Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
REMEDIES
Section 5.1. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such default
for a period of 5 days; or
(b) default in the payment of the principal of (or premium, if
any, on) any Security of that series when due and payable as therein or herein
provided whether at its maturity or upon acceleration, redemption or otherwise;
or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company contained in this Indenture in the terms of the
Securities of that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt with
or which has expressly been included in this Indenture solely for the benefit of
series of Securities other than that series), and continuance of such default or
breach for a period of 10 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 10% in principal amount of the outstanding Securities
of that series a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder;
(e) a default under any mortgage, indenture, or instrument
under which there may be issued or by which there may be secured or evidenced
any indebtedness for money borrowed by the Company (including a default with
respect to Securities of any series other than that series) whether such
indebtedness now exists or shall hereafter be created, which default shall have
resulted in such indebtedness, in an aggregate principal amount exceeding
$1,000,000, becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, without
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such indebtedness having been discharged, or such acceleration having been
rescinded or annulled, or there having been deposited in trust a sum of money
sufficient to discharge in full such indebtedness, within a period of 10 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 10% in principal amount of the outstanding Securities of that series a
written notice specifying such default and requiring the Company to cause such
indebtedness to be discharged, to cause there to be deposited in trust a sum
sufficient to discharge in full such indebtedness or to cause such acceleration
to be rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; provided, however, that, subject to the provisions of
Sections 6.1 and 6.2, the Trustee shall not be deemed to have knowledge of such
default unless the Trustee shall have received written notice thereof from the
Company, from any Holder, from the holder of any such indebtedness or from the
trustee under any such mortgage, indenture or other instrument; or
(f) the entry by a court having jurisdiction in the premises
of
(i) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect
or
(ii) a decree or order appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in
effect for a period of 30 consecutive days; or
(g) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by
the Company to the entry of a decree or order for relief in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect or to the
commencement of any bankruptcy or insolvency case or proceeding, or the filing
by the Company of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law now or hereafter in effect, or
the consent by the Company to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part of
the property of the Company, or the making by the Company of an assignment for
the benefit of creditors, or the Company shall fail generally to pay its debts
as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(h) any other Event of Default provided with respect to
Securities of that series.
(i) Subject to Sections 6.1 and 6.2, and except for
Events of Default described in Sections 5.1(a), (b) and (c),
the Trustee shall not be deemed to have knowledge of
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an Event of Default unless a Responsible Officer receives
written notice thereof.
Section 5.2. Acceleration of Maturity; Rescission and
Annulment.
(a) If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holder of not less than 10% in principal amount of the
Outstanding Securities of that series may declare the principal amount and the
interest accrued thereon of all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified amount) and interest accrued thereon shall become immediately due and
payable.
(b) 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 in this Article provided, the Holders of 80% 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 (the premium, if any,
on), any Securities of that series which have become
due otherwise than by such declaration of
acceleration and interest thereon at the rate or
rates prescribed therefor 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
and disbursements and advances of the Trustee, its
agents and counsel; and
(ii) all Events of Default with respect to Securities
of that series, other than the non-payment 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 in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
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Section 5.3. Collection of Indebtedness and Suit for
Enforcement by Trustee.
(a) The Company covenants that if:
(i) default is made in the payment of any interest on
any Security when such interest becomes due and payable and
such default continues for a period of 5 days, or
(ii) default is made in the payment of the principal
of (or premium, if any, on) any Security at the maturity, redemption,
acceleration or otherwise thereof or in the deposit of any sinking fund
payment when and as due by the terms of any Security,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue interest, at the
rate or rates prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
(b) If the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities,
wherever situated.
(c) If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may at its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim.
(a) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
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(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid
in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding;
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims; and
(iii) to distribute all amounts received with respect
to the claims of the Holders and the Trustee on their behalf,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
(b) Subject to the provisions of Article Eight of this
Indenture, nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
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FIRST: To the payment of all amounts due the
Trustee under Section 6.7;
SECOND: To the Holders of Senior Indebtedness as
provided in Article Thirteen.
THIRD: To the payment of the amounts then due and
unpaid for principal or (and premium, if
any) and interest on the Securities in
respect of which or for the benefit of which
such money has been collected, ratably,
without preference or priority of any kind,
according to the amounts due and payable on
such Securities for principal (and premium,
if any) and interest, respectively.
Section 5.7. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
(b) the Holders of not less than 10% in principal amount of
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Events of Default in its own
name as Trustee hereunder:
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 10 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 10-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other of Holders of Securities of such series or Holders of any
other series, or to obtain or to seek to obtain priority or preference over any
other of Holders of Securities of such series or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Securities of such series.
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Section 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 3.7) interest on such Security on the due dates expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 5.12. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
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respect to the Securities of such series, provided, that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) the Trustee shall have determined that the action so
directed would not be unjustly prejudicial to the Holders of any Securities of
any series with respect to which the Trustee is the Trustee not taking part in
such direction; and
(c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
(a) The Holders of not less than 80% in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default:
(i) in the payment of the principal of (or premium,
if any) or interest on any Security of such series, or
(ii) in respect of a covenant or provision hereof
which under Article Ten cannot be modified or amended without
the consent of the Holder of each Outstanding Security of such
series affected.
(b) Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security on
or after the due dates expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
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Section 5.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the exercise of any power
herein granted to the Trustee, but will suffer and permit the exercise of every
such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to Securities of any series,
(i) the Trustee undertakes to perform, with respect
to Securities of such series, such duties and only such duties
as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may, with respect to Securities of such series,
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
confirming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provisions 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.
(b) In case of Event of Default with respect to Securities of
any series has occurred and is continuing, the Trustee shall exercise, with
respect to Securities of such series, 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 man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
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(i) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series
pursuant to the provisions of Section 5.12 relating to the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and
(iv) no provisions of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 6.2 Notice of Defaults.
Within 60 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall transmit by
first-class mail to all Holders of Securities of such series, as their names and
addresses appear in the Security Register, notice of such default hereunder
known to a Responsible Officer of the Trustee, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of (of premium, if any) or interest on any
Security of such series or in the payment of any sinking fund installment with
respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series; and provided, further,
that in the case of any default of the character specified in Section 5.1 (d)
with respect to the Securities of such series, no such notice to Holders shall
be given, until at least 30 days after the occurrence thereof. For the purpose
of this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
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6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith, believed by it to be authorized or
within the discretion or rights and powers conferred
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upon it by this Indenture.
Section 6.4 Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificate of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof, for the use of application
of any moneys paid over by the Trustee in accordance with any provisions of this
Indenture for the use or application of any moneys received by any Paying Agent
other than the Trustee.
Section 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent or such agent.
Section 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 6.7. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
(c) to indemnify the Trustee for, and to hold it harmless
against any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of
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defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder; and
(d) that the obligations of the Company under this Section 6.7
to compensate the Trustee and to pay or reimburse the Trustee for such
expenditures, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a lien
prior to that of the Securities upon all property and funds held or collected by
the Trustee as such except funds held in trust for the benefit of the Holders of
particular Securities.
(e) When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 5.1(f) or (g) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
Section 6.8. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section, with respect to the Securities or any
series, it shall within 90 days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign with respect to
the Securities of that series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with
the provisions of Subsection (a) of this Section with respect to the Securities
of any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Holders of Securities of that series, as
their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest with respect to the Securities of any
series if:
(i) the Trustee is trustee under this Indenture with
respect to the Outstanding Securities of any series other than
that series or is trustee under another indenture under which
any other securities, or certificates of interest or
participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of
Securities issued under this Indenture; provided, that there
shall be excluded from the operation of this paragraph this
Indenture with respect to the Securities of any series other
than that series or other indenture or indentures under which
other securities, or certificates of interest or participation
in other securities, of the Company are outstanding if:
(A) this Indenture and such other indenture
or indentures are wholly unsecured and such other
indenture or indentures are hereafter qualified under
the Trust Indenture Act, unless the Commission shall
have found and declared by order pursuant to Section
305(b) or Section 307(c) of the Trust Indenture Act
that differences exist between the provisions of this
Indenture with
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respect to Securities of that series and one or more
other series or the provisions of such other
indenture or indentures which are so likely to
involve a material conflict of interest as to make it
necessary in the public interest or for the
protection of investors to disqualify the Trustee
from acting as such under this Indenture with respect
to the Securities of that series and such other
series or under such other indenture or indentures,
or
(B) the Company shall have sustained the
burden of proving, on application to the Commission
and after opportunity for hearing thereon, that
trusteeship under this Indenture with respect to the
Securities of that series and such other series or
such other indenture or indentures is not so likely
to involve a material conflict of interest as to make
it necessary in the public interest or for the
protection of investors to disqualify the Trustee
from acting as such under this Indenture with respect
to the Securities of that series and such other
series or under such other indenture or indentures;
(ii) the Trustee or any of its directors or executive
officers is an obligor upon the Securities or an underwriter
for the Company;
(iii) the Trustee directly or indirectly controls or
is directly or indirectly controlled by or is under direct or
indirect common control with the Company or an underwriter for
the Company;
(iv) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee
or representative of the Company, or of an underwriter (other
than the Trustee itself) for the Company who is currently
engaged in the business of underwriting, except that:
(A) one individual may be a director or an
executive officer, or both, of the Company but may
not be at the same time an executive officer of both
the Trustee and the Company;
(B) if and so long as the number of
directors of the Trustee in office is more than nine,
one additional individual may be a director or an
executive officer, or both, of the Trustee and a
director of the Company; and
(C) the Trustee may be designated by the
Company or by any underwriter for the Company to act
in the capacity of transfer agent, registrar,
custodian, paying agent, fiscal agent, escrow agent
or depositary or in any other similar capacity, or,
subject to the provisions of paragraph (i) of this
Subsection, to act as trustee, whether under an
indenture or otherwise;
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(v) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Company or by any
director, partner or executive officer thereof, or 20% or more
of such voting securities is beneficially owned, collectively,
by any two or more of such persons; or 10% or more of the
voting securities of the Trustee is beneficially owned either
by an underwriter for the Company or by any director, partner
or executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
(vi) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default
(as hereinafter in this Subsection defined),
(A) 5% or more of the voting securities, or
10% or more of any other class of security, of the
Company not including the Securities issued under
this indenture and securities issued under any other
indenture under which the Trustee is also trustee, or
(B) 10% or more of any class of security of
an underwriter for the Company;
(vii) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in
default (as hereinafter in this Subsection defined), 5% or
more of the voting securities of any person who, to the
knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is under
direct or indirect common control with, the Company;
(viii) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in
default (as hereinafter in this Subsection defined), 10% or
more of any class of security of any person who, to the
knowledge of the Trustee, owns 50% or more of the voting
securities of the Company; or
(ix) the Trustee owns, on May 15 in any calendar
year, in the capacity of executor, administrator, testamentary
or inter vivos trustee, guardian, committee or conservator, or
in any other similar capacity, an aggregate of 25% or more of
the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of
which would have constituted a conflicting interest under
Paragraph (vi), (vii) or (viii) of this Subsection. As to any
such securities of which the Trustee acquired ownership
through becoming executor, administrator or testamentary
trustee of an estate which included them, the provision of the
preceding sentence shall not apply for a period of two years
from the date of such acquisition to the extent that such
securities included in such estate do not exceed 25% of such
voting securities or 25% or any such class of security.
Promptly after May 15 in each calendar year, the Trustee shall
make a check of its holdings of such securities in any of the
above-mentioned capacities as of such May 15. If the Company
fails to make
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payment in full of the principal or (or premium, if any) or
interest on any of the Securities when and as the same becomes
due and payable, and such failure continues for 30 days
thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such 30-day
period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by
the Trustee, with sole or joint control over such securities
vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the
Trustee for the purposes of Paragraphs (vi), (vii) and (viii)
of this subsection.
The specification of percentages in Paragraphs (v) to (ix),
inclusive, of this subsection shall not be construed as
indicating that the ownership of such percentages of the
securities of a person is or is not necessary or sufficient to
constitute direct or indirect control for the purposes of this
paragraph (iii) or (vii) of this subsection.
For the purposes of Paragraphs (vi), (vii), (viii) and (ix) of
this subsection only, (x) the terms "security" and
"securities" shall include only such securities as are
generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence
an obligation to repay moneys lent to a person by one or more
banks, trust companies or banking firms, or any certificate of
interest or participation in any such note or evidence of
indebtedness; (y) an obligation shall be deemed to be "in
default" when a default payment of principal shall have
continued for 30 days or more and shall not have been cured;
and (z) the Trustee shall not be deemed to be the owner or
holder of (m) any security which it holds as collateral
security, as trustee or otherwise, for an obligation which is
not in default as defined in clause (y) above, or (n) any
security which it holds as collateral security under this
Indenture, irrespective of any default hereunder, or (c) any
security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar
representative capacity.
(d) For the purposes of this Section:
(i) The Term "underwriter", when used with reference
to the Company, means every person who, within three years
prior to the time as of which the determination is made, has
purchased from the Company with a view to, or has offered or
sold for the Company in connection with, the distribution of
any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in
any such undertaking, or has participated or has had a
participation of any such undertaking, but such term shall not
include a person whose interest was limited to a commission
from an underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
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(ii) The term "director' means any director of a
corporation or any individual performing similar functions
with respect to any organization, whether incorporated or
unincorporated.
(iii) The term "person" means an individual, a
corporation, a partnership, an association, a joint-stock
company, a trust, an unincorporated organization or a
government or political subdivision thereof. As used in this
paragraph, the term "trust' shall include only a trust where
the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(iv) The term "voting security" means any security
presently entitling the owner or holding thereof to vote in
the direction or management of the affairs of a person, or any
security issued under or pursuant to any trust, agreement or
arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently
entitled to vote in the direction or management of the affairs
of a person.
(v) the term "Company" means any obligor upon the
Securities.
(vi) The term "executive officer" means the
president, every vice president, every trust officer, the
cashier, the secretary and the treasurer of a corporation, and
any individual customarily performing similar functions with
respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the
board of directors.
(e) The percentages of voting securities and other securities specified
in this section shall be calculated in accordance with the following provisions:
(i) a specified percentage of voting securities of
the Trustee, the Company or any other person referred to in
this section (each of whom is referred to as a "person" in
this paragraph) means such amount of the outstanding voting
securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate
votes which the holders of all the outstanding voting
securities of such person are entitled to cast in the
direction or management of the affairs of such person.
(ii) A specified percentage of a class of securities
of a person means such percentage of the aggregate amount of
securities of the class outstanding.
(iii) The term "amount', when used in regard to
securities, means the principal amount if relating to
evidences of indebtedness, the number of shares if relating to
capital shares and the number of units if relating to any
other kind of security.
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(iv) The term "outstanding" means those securities
issued and not held by or for the account of the issuer. The
following securities shall not be deemed outstanding within
the meaning of this definition:
(A) securities of an issuer held in a
sinking fund relating to securities of the issuer of
the same class;
(B) securities of an issuer held in a
sinking fund relating to another class of securities
of the issuer, if the obligation evidenced by such
other class of securities is not in default as to
principal or interest or otherwise;
(C) securities pledged by the issuer thereof
as security for an obligation of the issuer not in
default as to principal or interest or otherwise; and
(D) securities held in escrow if placed in
escrow by the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to exercise
the voting rights thereof.
(f) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in the
case of secured evidences of indebtedness, all of which are issued under a
single indenture, differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute such series
different classes and provided, further, that, in the case of unsecured
evidences of indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities of
different classes, whether or not they are issued under a single indenture.
Section 6.9 Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder with respect
to each series of Securities which shall be a corporation organized and doing
business under the laws of the United States of America, any state thereof or
the District of Columbia, authorized under such laws to exercise corporate trust
powers, having (together with any Person directly or indirectly controlling the
Trustee) a combined capital and surplus of at least $10,000,000 subject to
supervision or examination by federal or state authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this section, the combined capital, and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
article.
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Section 6.10. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section
6.8(a) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security of the
series as to which the Trustee has a conflicting interest for
at least six months, or
(ii) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (y) subject to Section 5.14, any
Holder who has been bona fide Holder of a Security for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular
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series) and shall comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities of such series and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which
(i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such
successor Trustee relates,
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(ii) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and
(iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act
or failure to act on the part of any other trustee hereunder;
and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such
retiring Trustee shall with respect to the Securities of that
or those series to which the appointment of such successor
Trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the
duties and obligations vested in the trustee under this
Indenture, and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all
the rights, powers, trust and duties of the retiring Trustee
with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but,
on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee, to the extent contemplated by such
supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in Paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this article.
Section 6.12 Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall
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have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion, or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.
Section 6.13. Preferential Collection of Claims Against
Company.
(a) Subject to Subsection (b) of this section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within four months prior to a default, as defined in
Subsection (c) of this section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in
special account for the benefit of the Trustee individually, the holders of the
Securities and the holders of other indenture securities, as defined in
Subsection (c) of this section.
(i) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal, premium, if any, or interest, effected
after the beginning of such four months' period and valid as
against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any
property described in Paragraph (ii) of this subsection, or
from the exercise of any right of set-off which the Trustee
could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such default;
and
(ii) all property received by the Trustee in respect
of any claims as such creditor, either as security therefor,
or in satisfaction or composition thereof, or otherwise, after
the beginning of such four months' period, or an amount equal
to the proceeds of any such property, if any, of the Company
and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account
(1) payments made on account of any
such claim by any Person (other than the
Company) who is liable thereon, and
(2) the proceeds of the bona fide
sale of any such claim by the Trustee to a
third Person, and
(3) distributions made in cash,
securities or other property in respect of
claims filed against the Company in
bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal
Bankruptcy Act or applicable state law;
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(B) to realize, for its own account upon any
property held by it as security for any such claim,
if such property was so held prior to the beginning
of such four months' period;
(C) to realize, for its own account, but
only to the extent of the claim hereinafter
mentioned, upon any property held by it as security
for any such claim, if such claim was created after
the beginning of such four months' period and such
property was received as security therefor
simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at
the time such property was so received the Trustee
had no reasonable cause to believe that a default, as
defined in Subsection (c) of this section xxxx occur
within four months; or
(D) to receive payment on any claim referred
to in Paragraph (B) or (C), against the release of
any property held as security for such claim as
provided in Paragraph (B) or (C), as the case may be,
to the extent of the fair value of such property.
For purposes of Paragraphs (B), (C) and (D), property
substituted after the beginning of such four months'
period for property held as security at the time of
such substitution shall, to the extent of the fair
value of the property released, have the same status
as the property released, and, to the extent that any
claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for
the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing
claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the Holders of other indenture
securities in such manner that the Trustee, the Holders and the Holders of other
indenture securities realize, as a result of payment from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable state law, the same percentage of their respective
claims, calculated before crediting to the claim of the Trustee anything on
account of the receipt by it from the Company of the funds and property in such
special account and before crediting to the respective claims of the Trustee and
the Holders and the holders of other indenture securities dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable state law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividend" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable state law, whether such
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distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (x) to apportion among the
Trustee, the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and proceeds thereof, or (y) in lieu of such apportionment,
in whole or in part, to give to other provisions of this paragraph due
consideration in determining the fairness of the distributions to be made to the
Trustee and the Holders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured or unsecured portions of
such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such four months' period shall be subject to the provisions of this
subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such four months'
period, it shall be subject to the provisions of this subsection if and only if
the following conditions exist:
(iii) the receipt of property or reduction of claim,
which would have given rise to the obligation to account, if
such Trustee had continued as Trustee, occurred after the
beginning of such four months' period; and
(iv) such receipt of property or reduction of claim
occurred within four months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection
(a) of this section a creditor relationship arising from:
(i) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by the
Trustee;
(ii) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this
Indenture, for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture or
of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders at the
time and in the manner provided in this Indenture;
(iii) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary, or other similar capacity;
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(iv) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction, as
defined in Subsection (c) of this section;
(v) the ownership of stock or of other securities of
a corporation organized under the provisions of Section 25(a)
of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; and
(vi) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper, as defined in Subsection (c) in this
section.
(c) For the purposes of this section only:
(i) the term "default" means any failure to make
payment in full of the principal of or interest on any of the
Securities or upon the other indenture securities when and as
such principal or interest becomes due and payable;
(ii) the term "other indenture securities" means
securities upon which the Company is an obligor outstanding
under any other indenture;
(A) under which indenture and as to which
securities the Trustee is also trustee,
(B) which contains provisions substantially
similar to the provisions of this section, and
(C) under which a default exists at the time
of the apportionment of the funds and property held
in such account;
(iii) the term "cash transaction" means any
transaction in which full payment for goods or securities sold
is made within seven days after delivery of the goods or
securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand;
(iv) the term "self-liquidating paper" means any
draft xxxx of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship
with the
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Company arising form the making, drawing, negotiating or
incurring of the draft, xxxx of exchange, acceptance or
obligation;
(v) the term "Company" means any obligor upon the
Securities; and
(vi) the term "Federal Bankruptcy Act" means the
Bankruptcy Act or Title 11 of the United States Code.
Section 6.14. Appointment of Authenticating Agent.
(a) At any time when any of the Securities remain Outstanding,
the Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.6, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Whenever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery by an Authenticating Agent and a certificate of
authentication executed by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Company and shall at all times be a corporation
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, authorized under such laws to act as
authenticating Agent, having a combined capital and surplus of not less than
$10,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this section.
(b) Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any
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time such Authenticating Agent shall cease to be eligible in accordance with the
provision of this section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this section.
(d) The Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this section,
and the Trustee shall be entitled to be reimbursed for such payments.
(e) The provisions of Sections 3.8, 6.4 and 6.5 shall be
applicable to each Authenticating Agent.
(f) Pursuant to each appointment made under this section, the
Securities of each series covered by such appointment may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
As Authenticating Agent
By:
Authorized Signatory
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Company to Furnish Trustee Names and Addresses of
Holders.
(a) The Company will furnish or cause to be furnished to the
Trustee:
(i) semi-annually, not more than 15 days after each
record date with respect to a regular interest payment date
for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of
the Holders of such series as of such record date; provided;
however, that if Securities of any series shall have more than
two regular interest payment dates in each calendar year or
shall
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not bear interest, then such list with respect to such series
of Securities will be furnished to the Trustee semi-annually
on such dates as may be agreeable to the Trustee; and
(ii) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the Company of
any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is
furnished.
(b) Any such list may be dated as of the date not more than 15
days prior to the time such information is furnished or caused to be furnished
and need not include information received after such date; provided, however,
that if the Trustee is the sole registrar with respect to any series of
Securities, no such list need be furnished with respect to such series.
Section 7.2 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.1 and the names
and addresses of Holders received by the Trustee in its capacity as sole
Security Registrar, if so acting. The Trustee may destroy any list furnished to
it as provided in Section 7.1 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee and furnish proof reasonably
satisfactory to the Trustee that each applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants' desire to communicate with other Holders
with respect to their rights under this Indenture or under the Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five business
days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 7.2(a), or
(ii) inform such applicants as to the approximate
number of Holders whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with Section 7.2(a), and as to the approximate cost of mailing
to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section
7.2(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or
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provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the holders or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and renewal of such tender; otherwise the Trustee shall be relieved
of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 7.2(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
7.2(b).
Section 7.3. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with
the May 15 next succeeding the Original Issue date of such Securities, the
Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Security Register, a brief report dated as of such May 15 with
respect to:
(i) its eligibility under Section 6.9 and its
qualifications under Section 6.8, or in lieu thereof, if to
the best of its knowledge it has continued to be eligible and
qualified under said section, a written statement to such
effect;
(ii) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) which remain
unpaid on the date of such report, and for the reimbursement
of which it claims or may claim a lien or charge, prior to
that of the Securities, on the trust estate or on any property
or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not
more than 1/2 of 1% of the principal amount of the Securities
Outstanding on the date of such report;
(iii) the amount, interest rate and maturity date of
all other indebtedness owing by the Company (or by any other
obligor on the Securities) to the Trustee in its individual
capacity, on the date of such report, with a brief description
of any
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property held as collateral security therefor, except an
indebtedness based upon a creditor relationship arising in any
manner described in Section 6.13(b) (ii), (iii), (iv) or (vi);
(iv) the property and funds, if any, physically in
the possession of the Trustee (as such) on the date of such
report;
(v) any additional issue of Securities which the
Trustee has not previously reported; and
(vi) any action taken by the Trustee in the
performance of its duties hereunder which it has not
previously reported and which in its opinion materially
affects the Securities, or the Securities of any series,
except action in respect of a default, notice of which has
been or is to be withheld by the Trustee in accordance with
Section 6.2.
(b) The Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Security Register, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
Subsection (a) of this section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities, on the trust estate or on property or funds held or collected by
it as Trustee and which it has not previously reported pursuant to this
subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the Securities Outstanding at such time, such
report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
(d) Notwithstanding anything in this Section 7.3 to the
contrary, if no event described in Section 313(a) of the Trust Indenture Act has
occurred within the 12 months preceding May 15 of each year, no report need be
transmitted to Holders.
Section 7.4. Reports by Company.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time
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by rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); or, if the Company is not
required to file information, documents or reports pursuant to either of said
sections, then it shall file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations;
(c) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to Paragraphs (a) and (b)
of this section as may be required by rules and regulations prescribed from time
to time by the Commission; and
(d) promptly furnish such additional information regarding the
Company as may be reasonably requested and reasonably deemed necessary by the
Trustee in the conduct of its duties hereunder; provided, however, that the
Company shall have no obligation concerning any information constituting
restricted securities information under any law or governmental regulation at
the time of application thereto.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1. Company may Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge with or into
any other corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(a) the corporation formed by such consolidation or with or
into which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation organized and existing under
the laws of the United States of America, any state thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and interest
on all the Securities and the performance and observance of every covenant of
this Indenture on the part of the Company to be performed or observed;
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(b) immediately after giving effect to such transaction no
Event of Default, and no event which, after notice of lapse of time or both,
would become an Event of Default shall have happened or be continuing; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and supplemental indenture comply with
this article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
Section 8.2 Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company with or into any other corporation or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety in
accordance with Section 8.1, the successor corporation formed by such
consolidation or with or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor corporation had been named as the Company
herein, and thereafter, except in the case of a lease, the preecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
Section 8.3 Officers' Certificates and Opinions of Counsel
The Trustee, subject to the provisions of Article Six, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any consolidation, merger, conveyance, transfer or lease and any
assumption complies with the provisions of this Article Eight, that all
conditions precedent herein provided for relating to such transaction have been
complied with and that it is proper for the Trustee under the provisions of this
Article Eight to join in the execution of the supplemental indenture referred to
in Section 8.1.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
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(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default; or
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable as to principal, and with or
without interest coupons; or
(e) to change or eliminate any of the provisions of this
Indenture, provided, that, any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(f) to secure the Securities; or
(g) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11(b); or
(i) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under
this Indenture, provided such action shall not adversely affect the interest of
the Holders of Securities of any series in any material respect.
Section 9.2. Supplemental Indentures with Consent of Holders.
(a) With the consent of the Holders of not less than 80% in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
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(i) change the due date of the principal of, or any
installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of any Security that would
be due and payable upon a declaration of the maturity thereof
pursuant to Section 5.2, or change the coin or currency in
which any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the due date
thereof (or, in the case of redemption, on or after the
Redemption Date), or
(ii) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or
(iii) modify any of the provisions of this section or
Section 5.13, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this section or the
deletion of this provision, in accordance with the
requirements of Sections 6.11(b) and 9.1(h).
(b) A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
(c) It shall not be necessary for any Act of Holders under
this section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 9.3. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.1) shall be fully protected in relying
upon, an Opinion of Counsel and an Officers' Certificate stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent therewith, and that it will be valid and
binding upon the Company in accordance with its terms. The Trustee is hereby
authorized to join with the Company in the execution of any supplemental
indenture permitted by this Article and is authorized or permitted by the terms
of this Indenture to make any
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further appropriate agreements and stipulations which may be therein contained,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects its own rights, duties or immunities under this
Indenture or otherwise.
Section 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this article
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.6. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and delivered by the Company to the
Trustee and thereafter upon surrender by the Holders of Outstanding Securities,
the same shall be authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series, but any such exchange shall not be
necessary to make such modification effective as to Outstanding Securities.
ARTICLE TEN
COVENANTS
Section 10.1. Payment of principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities of that series in accordance
with the terms of the Securities and this Indenture.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The
City of New York for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
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transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served.
Unless otherwise designated by the Company in a written notice to the Trustee,
such office or agency for all purposes shall be the Corporate Trust Office of
the Trustee. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
Section 10.3. Money for Securities Payments to Be Held in
Trust.
(a) The Company will, prior to each due date of the principal
of (and premium, if any) or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Paying Agent will promptly notify the Trustee of the
Company's action or failure so to act.
(b) The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this section, that such Paying Agent will:
(i) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities
of that series in trust for such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice within two Business Days
of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment of
principal of (and premium, if any) or interest on the
Securities of that series; and
(iii) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
(c) The Company may, at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, or by
Company Order direct any Paying Agent to pay, to the Trustee all sums held by
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sum were held by the Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
(d) Any money deposited with the Trustee or any Paying Agent
in trust for the
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payment of the principal of (and premium, if any) or interest on any Security of
any series and remaining unclaimed for three years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company on Company Request, and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repaying may, at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in Toronto, Ontario
and the borough of Manhattan, The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
(e) Neither the Company nor any Affiliate of the Company shall
act as Paying Agent under this Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article.
Securities of any series which are redeemable before their
stated maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 3.1 for Securities of any
series) in accordance with this article.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 11.3. Selection by Trustee of Securities to be
Redeemed.
(a) If less than all the Securities of any series are to be
redeemed, the Company will notify the Trustee not less than 60 days prior to the
date fixed for redemption as to the aggregate principal amount of Securities to
be redeemed, and thereupon, the particular Securities to be redeemed shall be
selected not less than 45 days prior to the Redemption Date by the Trustee, from
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the Outstanding Securities of such series not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denominations for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series or of a
denomination larger than the minimum authorized denomination for Securities of
that series.
(b) The Trustee shall promptly notify the Company in writing
of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
(c) For the purposes of any such selection, the Company will,
upon request of the Trustee, close for a period of 15 days preceding the mailing
of any notice of redemption the Security Register of the Company with respect to
such series of Securities.
(d) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register. The notice provided in the manner herein
provided shall be conclusively presumed to have been duly given whether or not
the Holders receive such notice. In any case, failure to give such notice to the
Holder of any Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings of the redemption of any other Security.
Section 11.5. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date.
Section 11.6. Securities Payable on Redemption Date.
(a) Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date,
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the
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Company at the Redemption Date together with accrued interest to the Redemption
Date; provided, however, that installments of interest whose due date is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant record date with respect to such installments of
interest according to their terms and the provisions of Section 3.7.
(b) If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a specified place of payment therefor (with, if the Company or
the Trustee so require, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series, of any authorized denomination as requested by such holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 12.1. Applicability of Article.
(a) The provisions of this article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.1 for Securities of such series.
(b) The minimum amount of any sinking fund payment provided
for by the terms of the Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein referred
to as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 12.2. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities.
In lieu of making all or part of any sinking fund payments in
cash with respect to
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Securities of any series, the Company
(a) may deliver to the Trustee for cancellation Outstanding
Securities of such series (other than any previously called for redemption) and
(b) may apply as a credit Securities of a series which have
been redeemed either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such Securities
provided, that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of the series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 12.2 and will also deliver to the Trustee any
Securities so delivered. Not less than 30 days before each sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment in the manner specified in Section 11.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE THIRTEEN
SUBORDINATION
Section 13.1 Applicability of Article.
The provisions of this article shall be applicable to the
Securities of any series which are subordinated in accordance with their terms
as contemplated by Section 3.1 to any Senior Indebtedness.
Section 13.2. Securities Subordinated to Senior Indebtedness.
(a) The Company, for itself and its successors, and each
Holder, by his acceptance of Securities, agrees that the payment of the
principal of and interest on the Securities is subordinated,
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to the extent and in the manner provided in this article (except as otherwise
specified as contemplated by Section 3.1 or such series of Securities) to the
prior payment in full of all Senior Indebtedness.
(b) This Article shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Indebtedness, and such provisions are made for the benefit of the
holders of Senior Indebtedness, and such holders are made obligees hereunder and
they and/or each of them may enforce such provisions.
Section 13.3. No Payment on Securities in Certain
Circumstances.
(a) Upon the maturity of any Senior Indebtedness by lapse of
time, acceleration or otherwise, all principal thereof and interest thereon and
other amounts due in connection therewith shall first be paid in full, or such
payment duly provided for in accordance with the terms of such indebtedness or
in a manner otherwise satisfactory to the holders of such Senior Indebtedness,
before any payment is made
(i) on account of principal of or interest on the
Securities or
(ii) to acquire any of the securities for cash or
property other than Capital Stock of the Company or
(iii) on account of the redemption provisions for
the Securities.
(b) Upon the happening of an event of default (or if an event
of default would result upon any payment with respect to the Securities) with
respect to any Senior Indebtedness, as such event of default is defined therein
or in the instrument under which it is outstanding, permitting the holders to
accelerate the maturity thereof and (if the default is other than (i) default in
payment of the principal of or interest on or other amounts due in connection
with such Senior Indebtedness or (ii) a default for which notice is required to
be sent under the terms of such Senior Indebtedness by the holders thereof or
their representative) upon written notice thereof given to the Company and the
Trustee by the Holders of such Senior Indebtedness or their representative,
then, unless and until such event of default shall have been cured or waived or
shall have ceased to exist, no payment shall be made by the Company with respect
to the principal of or interest on the Securities or to acquire any of the
Securities or on account of the redemption provisions for the Securities;
provided, however, that if such default is a default other than a default
referred to in Clause (i) of this Section 13.3(b), nothing contianed in this
Section 13.3(b) shall prevent the Company from making payment of interest, when
due, on the Securities; and provided further, that if such default has not
become the subject of pretrial proceedings within 120 days after the occurrence
thereof (in the case of a default specified in clause (A) of this Section
13.3(b)), then the Company shall resume making any and all required payments in
respect of the Securities.
(c) In the event notwithstanding the provisions of this
Section 13.3, the Company shall make any payment to the Trustee on account of
the principal of or interest on the Securities or
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on account of the redemption provisions (other than as permitted by Section
13.3(b)), after the happening of an event of default of the type specified in
Clause (i) or (ii) of Section 13.3(b) above or after receipt by the Company and
the Trustee of written notice as provided in Section 13.3(b) above of any other
event of default with respect to any Senior Indebtedness, then, unless and until
such event of default shall have been cured or waived or shall have ceased to
exist, such payment (subject to the provisions of Sections 13.7 and 13.8) shall
be held by the Trustee, in trust for the benefit of, and shall be paid forthwith
over and delivered to, the holders of Senior Indebtedness ( pro rata as to each
of such holders on the basis of the respective amounts of Senior Indebtedness
held by them) or their representative, as their respective interests may appear,
for application to the payment of all Senior Indebtedness remaining unpaid to
the extent necessary to pay all Senior Indebtedness in full in accordance with
its terms, after giving effect to any concurrent payment or distribution to or
for the holders of Senior Indebtedness. The Company shall give prompt written
notice to the Trustee of any default under any Senior Indebtedness or under any
agreement pursuant to which Senior Indebtedness may have been issued.
Section 13.4. Securities Subordinated to Prior Payment of All
Senior Indebtedness on Dissolution, Liquidation or Reorganization of Company.
Upon any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditor or otherwise):
(a) the holders of all Senior Indebtedness shall first be
entitled to receive payment in full (or to have such payment duly proved for) of
the principal thereof and interest due thereon and other amounts due in
connection therewith before the Holders are entitled to receive any payment on
account of the principal of or interest on the Securities;
(b) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to which the
Holders or the Trustee on behalf of the Holders would be entitled except for the
provisions of this article, shall be paid by the liquidating trustee or agent or
other person making such payment or distribution directly to the holders of
Senior Indebtedness or their representative to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid, after giving effect
to any concurrent payment or distribution nor provision therefor to the holders
of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, shall be received by the Trustee or the
Holders or any Paying Agent (or, if the Company is acting as its own Paying
Agent, money for any such payment or distribution shall be segregated or held in
trust) on account of principal of or interest on the Securities before all
Senior Indebtedness is paid in full, or effective provision made for its
payment, such payment or distribution (subject to the provisions of Sections
13.7 and 13.8) shall be received and held in trust for and shall be paid over to
the holders of the Senior Indebtedness until all such Senior Indebtedness shall
have been paid in full, after giving
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effect to any concurrent payment or distribution or provision therefor to the
holders of such Senior Indebtedness.
The Company shall give prompt written notice to the Trustee of
any dissolution, winding up, liquidation or reorganization of the Company or any
assignment for the benefit of the Company's creditors.
Section 13.5. Securityholders to be Subrogated to Rights of
Holders of Senior Indebtedness.
Subject to the payment in full of all Senior indebtedness, the
Holders of Securities shall be subrogated to the rights of the Holders of Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to the Senior Indebtedness until all amounts owing on the Securities
shall be paid in full, and for the purpose of such subrogation no such payments
or distributions to the holders of Senior Indebtedness by or on behalf of the
Company or by or on behalf of the Holders by virtue of this article which
otherwise would have been made to the Holders shall, as between the Company and
the Holders, be deemed to be payment by the Company to or on account of the
Senior Indebtedness, it being understood that the provisions of this article are
and are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of Senior Indebtedness, on the other
hand.
Section 13.6. Obligations of the Company Unconditional.
Nothing contained in this article or elsewhere in this
Indenture or in any Security is intended to or shall impair, as between the
Company and the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms or is intended to or shall affect the relative rights of the Holders
and creditors of the Company other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this article of the Holders
of Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy. Upon any distribution of assets
of the Company referred to in this article, the Trustee, subject to the
provisions of Sections 6.1 and 6.3, and the Holders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
such dissolution, winding up, liquidation, reorganization or similar proceedings
are pending, or a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the Holders, for the purpose
of ascertaining the persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this article.
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Section 13.7. Trustee and Paying Agent Entitled to Assume
Payments Not Prohibited in Absence of Notice.
The Trustee and Paying Agent shall not at any time be charged
with knowledge of the existence of any facts which would prohibit the making of
any payment to or by the Trustee or the Paying Agent or the taking of any other
action under this article by the Trustee unless and until the Trustee or the
Paying Agent shall have received written notice thereof from the Company or from
one or more holders of Senior Indebtedness or from any representative therefor
and, prior to the receipt of any such written notice, the Trustee and Paying
Agent, subject to the provisions of Sections 6.1 and 6.3, shall be entitled in
all respects conclusively to assume that no such facts exist.
Section 13.8. Application by Trustee of Moneys Deposited with
It.
Money or securities deposited in trust with the Trustee
pursuant to and in accordance with Section 10.1 shall be for the sole benefit of
Securityholders and, to the extent allocated for the payment of Securities,
shall not be subject to the subordination provisions of this article. Otherwise,
any deposit of moneys by the Company with the Trustee or any Paying Agent
(whether or not in trust) for the payment of the principal of or interest on any
Securities shall be subject to the provisions of Sections 13.1, 13.2, 13.3, 13.4
and 13.5 except that, if two Business Days prior to the date on which by the
terms of this Indenture any such moneys may become payable for any purpose
(including, without limitation, the payment of either the principal of or the
interest on any Security), the Trustee shall not have received with respect to
such monies the notice provided for in Section 13.7, then the Trustee or the
Paying Agent shall have full power and authority to receive such moneys and to
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary which may be received by it during or
after such two Business Days. This section shall be construed solely for the
benefit of the Trustee and Paying Agent and nothing herein shall be construed to
relieve any Holders from the duties imposed upon them under Section 13.4(c) with
respect to moneys received in violation of the provisions of this article.
Section 13.9. Subordination Rights Not Impaired by Acts or
Omissions of Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination as provided herein shall at any time in
any way be prejudiced or impaired by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company with the terms of
this Indenture, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with. The holders of Senior Indebtedness may
extend, renew, modify or amend the terms of the Senior Indebtedness or any
security therefor and release, sell or exchange such security and otherwise deal
freely with the Company, all without affecting the liabilities and obligations
of the parties to the Indenture or the Holders. No provision in any supplemental
indenture which affects the superior position of the holders of the Senior
Indebtedness shall be effective against the holders of the Senior Indebtedness
who have not consented thereto.
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Section 13.10. Securityholders Authorize Trustee to Effectuate
subordination of Securities.
Each Holder by his acceptance of Securities authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
article and appoints the Trustee his attorney-in-fact for which purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or any other similar remedy or otherwise) tending towards liquidation
of the business and assets of the Company, the immediate filing of a claim for
the unpaid balance of his Securities in the form required in said proceedings
and causing said claim to be approved. If the Trustee does not file a prior
claim or proof of debt in the form required in such proceeding prior to 30 days
before the expiration of the time to file such claim or claims, then the holders
of Senior Indebtedness are hereby authorized to have the right to file and are
hereby authorized to file an appropriate claim for and on behalf of the Holders.
Section 13.11. Right of Trustee and Paying Agent to Hold
Senior Indebtedness.
The Trustee and the paying Agent, in their individual
capacities, shall be entitled to all of the rights set forth in this article in
respect of any Senior Indebtedness at any time held by either of them to the
same extent any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee or the Paying Agent of any
of its rights as such Holder.
Section 13.12. This Article Not to Prevent Events of Default.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this article shall not
be construed as preventing the occurrence of an Event of Default under Section
5.1.
Section 13.13. No Fiduciary Duty Created to Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness by virtue of the provisions of this article.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
[Seal] DUSA Pharmaceuticals, Inc.
Attest:
By: /s/ D. Xxxxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx D. Xxxxxxxx Xxxxxxx
Secretary Title: President and Chief Executive Officer
[Seal] AMERICAN STOCK TRANSFER & TRUST CO.
Attest:
/s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
Vice-Secretary Xxxxxxx Xxxxxx
Vice-President
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EXHIBIT 1
FORM OF ONE YEAR NOTE
[Form of Face of Note]
Number $_________
ONE YEAR NOTE
DUSA PHARMACEUTICALS, INC.
[ ]%
Due________________
DUSA Pharmaceuticals, Inc., a corporation duly organized and existing
under the laws of the State of New Jersey (herein referred to as the "Company"),
for value received, hereby promises to pay to _____________________ , or
registered assigns, the principal sum of $ ____________ , at the office or
agency of the Company in ____________________ , on _________________ , ______ ,
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest, on each Interest Payment Date (as defined herein) on said
principal sum at said office or agency, in like coin or currency, at the rate
per annum specified in the title of this Note from the Interest Payment Date,
next preceding the date of this Note to which interest has been paid or duly
provided for, unless the date hereof is a date to which interest has been paid
or duly provided for, in which case from the date of this Note, or unless no
interest has been paid or duly provided for on the Notes since the Original
Issue Date as defined in the Indenture referred to on the reverse hereto) of
this Note, then from such original Issue Date, until payment of said principal
sum has been made or duly provided for. The interest so payable on any Interest
Payment Date will, subject to certain exceptions provided in the Indenture, be
paid to the person in whose name this Note is registered at the close of
business on the fifteenth day preceding such Interest Payment Date (the "Record
Date" corresponding to such Interest Payment Date), whether or not such Interest
Payment Date is a business day, and may, at the option of the Company, be paid
by check mailed to the registered address of such person. Notwithstanding the
foregoing, if the date hereof is after the Record Date corresponding to an
Interest Payment Date and before such Interest Payment Date, this Note shall
bear interest from such Interest Payment Date; provided, however, that if the
Company shall default in the payment of interest due on the Interest Payment
Date on the series of Securities of which this Note is part, then this Note
shall bear interest from the next preceding Interest Payment Date to which
interest has been paid or duly provided for, or, if no interest has been paid or
duly provided for on the Notes since the Original Issue Date of this Note, from
the Original Issue Date hereof. An "Interest Payment Date" shall be a date which
is 90, 180 or 270 days after the Original Issue Date of this Note.
This Note may be redeemed by the Company at any time in accordance with
the provisions therefore in the Indenture, for a payment in cash equal to 100%
of the then outstanding principal sum, plus accrued and unpaid interest to the
Redemption Date.
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Reference is made to the further provisions of this Note set forth on
the reverse hereto. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by or on behalf
of the Trustee under such Indenture.
IN WITNESS WHEREOF, DUSA Pharmaceuticals, Inc. has caused this
instrument to be executed in its corporate name by the facsimile signatures of
its Chairman of the Board, its President, or one of its Vice Presidents or its
Secretary and impressed or imprinted with its corporate seal or a facsimile
thereof.
Dated: DUSA Pharmaceuticals, Inc.
By:
D. Xxxxxxxx Xxxxxxx
Title: President and Chief Executive Officer
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[Form of Certificate of Authentication]
This is one of the Securities of the series designated pursuant to the
within-mentioned Indenture.
as Trustee as Trustee
OR
By
Authorized Signatory as Authenticating Agent
By:
Authorized Signatory
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[Form of Reverse Side of Note]
DUSA PHARMACEUTICALS, INC.
ONE YEAR NOTE
This Note is one of a duly authorized issue of debentures,
notes or other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of September 26, 1997, (herein
called the "Indenture"), duly executed and delivered by the Company to American
Stock Transfer & Trust Co., Trustee (herein called the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and Holders of the Securities.
The Securities may be issued in one or more series, which different series may
be issued in various aggregate principal amounts, may as between different
series and within a given series mature at different times, may bear interest
(if any) at different rates, may be subject to different redemption provisions
(if any), may be subject to different sinking, purchase or analogous funds (if
any), and may otherwise vary as in the Indenture provided. This Note is one of a
series designated as the One Year Notes of the Company, limited in aggregate
principal amount to the amount issuable upon exercise of the Company's Rights
declared as dividends on September 26, 1997, pursuant to a rights agreement
dated as of September 26, 1997 between the Company and American Stock Transfer &
Trust Co., as rights agent.
Interest on the Notes shall be calculated on the basis of a
360-day year consisting of twelve 30-day months.
If an Event of Default, as defined in the Indenture, with
respect to Notes of this series shall occur and be continuing, the principal of
the Notes of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than 80% in principal
amount of the Securities at the time Outstanding (as that term is defined in the
Indenture) of each series to be affected. The Indenture also contains provisions
permitting the Holders of 80% in aggregate principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all Securities
of such series, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Security issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
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No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes are issuable only in registered form without coupons
in denominations of [$10] and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
[This Note is subordinated in right of payment to the prior
payment in full of all Senior Indebtedness. "Senior Indebtedness" means the
principal of interest on and other amounts due on or in connection with (i) any
Indebtedness of the Company (other than the Notes), whether outstanding on the
date of this Indenture or hereafter created, incurred, assumed or guaranteed in
any manner by the Company; and (ii) deferrals, renewals, extensions or
refundings of, or amendments, modifications or supplements to, such
Indebtedness, unless the instrument creating or evidencing such Indebtedness or
the assumption or guarantee thereof expressly provides that such Indebtedness
shall not be senior in right of payment to the Notes. Senior Indebtedness shall
not, however, include Indebtedness of the Company to a Subsidiary for money
borrowed or advances from such Subsidiary.]
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company, the Trustee and
any agent of the Company or the Trustee may treat the person in whose name this
Note is registered as the owner hereof for all purposes, whether or not this
Note be overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
All capitalized terms used in this Note and not defined herein
shall have the meanings assigned to them in the Indenture.
This Note shall be deemed to be a contract made under the laws
of the State of New Jersey and for all purposes shall be construed in accordance
with and governed by the laws of such state.
