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Exhibit 4.3
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XXXXXX INDUSTRIES, INC.
TO
--------------------------------,
TRUSTEE
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INDENTURE
Dated as of
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Subordinated Debt Securities
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XXXXXX INDUSTRIES, INC.
RECONCILIATION AND TIE BETWEEN CERTAIN SECTIONS OF
THIS INDENTURE, DATED AS OF ____________, AND
SECTIONS 310 THROUGH 318, INCLUSIVE, OF
THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
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310 (a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608
610
311 (a) 613
(b) 613
312 (a) 701
702(a)
(b) 702(b)
(c) 702(c)
313 (a) 703(a)
(b) 703(a)
(c) 703(a)
(d) 703(b)
314 (a) 704
(a)(4) 101
1004
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315 (a) 601
(b) 602
(c) 601
(d) 601
(e) 514
316 (a) 101
(a)(1)(A) 502
512
3
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) 104(c)
317 (a)(1) 503
(a)(2) 504
(b) 1003
318 (a) 107
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS
Page
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RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . 2
Common Stock . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . 3
Company Order . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . 3
Covenant Defeasance . . . . . . . . . . . . . 3
days . . . . . . . . . . . . . . . . . . . . 3
Debt . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . 4
Defeasance . . . . . . . . . . . . . . . . . 4
Defeasible Series . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . 4
Floating or Adjustable Rate Provision . . . 4
Floating or Adjustable Rate Security . . . . 4
Global Security . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . 5
Notice of Default . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . 5
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Original Issue Discount Security . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . 6
PIK Security . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . 6
Principal Subsidiary . . . . . . . . . . . . 6
Proceeding . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . 7
Security Register . . . . . . . . . . . . . . 7
Security Registrar . . . . . . . . . . . . . 7
Senior Debt . . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . 8
U.S. Government Obligations . . . . . . . . . 8
Vice President . . . . . . . . . . . . . . . 8
Section 102. Compliance Certificates and Opinions . . . . 8
Section 103. Form of Documents Delivered to Trustee . . . 9
Section 104. Acts of Holders; Record Dates . . . . . . . . 9
Section 105. Notices, Etc. to Trustee and Company . . . . 11
Section 106. Notice to Holders; Waiver . . . . . . . . . . 11
Section 107. Conflict with Trust Indenture Act . . . . . . 11
Section 108. Effect of Headings and Table of Contents . . 12
Section 109. Successors and Assigns . . . . . . . . . . . 12
Section 110. Separability Clause . . . . . . . . . . . . . 12
Section 111. Benefits of Indenture . . . . . . . . . . . . 12
Section 112. Governing Law . . . . . . . . . . . . . . . . 12
Section 113. Legal Holidays . . . . . . . . . . . . . . . 12
Section 114. Personal Immunity from Liability for
Incorporators, Stockholders, Etc. . . . . . 12
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally . . . . . . . . . . . . . . . 13
Section 202. Form of Face of Security . . . . . . . . . . 13
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Section 203. Form of Reverse of Security . . . . . . . . . 15
Section 204. Form of Legend for Global Securities . . . . 20
Section 205. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . 20
Section 206. Form of Conversion Notice . . . . . . . . . . 20
Section 207. Securities Issuable in Global Form . . . . . 22
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series . . . . 23
Section 302. Denominations . . . . . . . . . . . . . . . . 25
Section 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . 26
Section 304. Temporary Securities . . . . . . . . . . . . 28
Section 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . 28
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . 30
Section 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . 31
Section 308. Persons Deemed Owners . . . . . . . . . . . . 32
Section 309. Cancellation . . . . . . . . . . . . . . . . 32
Section 310. Computation of Interest . . . . . . . . . . . 32
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture . . . 33
Section 402. Application of Trust Fund . . . . . . . . . . 34
ARTICLE FIVE
REMEDIES
Section 501. Events of Default . . . . . . . . . . . . . . 34
Section 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . 35
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . 37
Section 504. Trustee May File Proofs of Claim . . . . . . 38
Section 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . 38
Section 506. Application of Money Collected . . . . . . . 39
Section 507. Limitation on Suits . . . . . . . . . . . . . 39
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to
Convert . . . . . . . . . . . . . . . . . . . 40
Section 509. Restoration of Rights and Remedies . . . . . 40
Section 510. Rights and Remedies Cumulative . . . . . . . 40
Section 511. Delay or Omission Not Waiver . . . . . . . . 40
Section 512. Control by Holders . . . . . . . . . . . . . 41
Section 513. Waiver of Past Defaults . . . . . . . . . . . 41
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Section 514. Undertaking for Costs . . . . . . . . . . . . 41
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities . . . . . 42
Section 602. Notice of Defaults . . . . . . . . . . . . . 43
Section 603. Certain Rights of Trustee . . . . . . . . . . 43
Section 604. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . 44
Section 605. May Hold Securities . . . . . . . . . . . . . 45
Section 606. Money Held in Trust . . . . . . . . . . . . . 45
Section 607. Compensation and Reimbursement . . . . . . . 45
Section 608. Disqualification; Conflicting Interests . . . 46
Section 609. Corporate Trustee Required; Eligibility . . . 46
Section 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . 46
Section 611. Acceptance of Appointment by Successor . . . 48
Section 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . 49
Section 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . 49
Section 614. Appointment of Authenticating Agent . . . . . 49
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses
of Holders . . . . . . . . . . . . . . . . . 51
Section 702. Preservation of Information; Communications
to Holders . . . . . . . . . . . . . . . . . 51
Section 703. Reports by Trustee . . . . . . . . . . . . . 51
Section 704. Reports by Company . . . . . . . . . . . . . 52
ARTICLE EIGHT
CONSOLIDATION, MERGER, OR SALE OF ASSETS
Section 801. Company May Consolidate, Etc. Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . 52
Section 802. Successor Substituted . . . . . . . . . . . . 53
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of
Holders . . . . . . . . . . . . . . . . . . 53
Section 902. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . . . 54
Section 903. Execution of Supplemental Indentures . . . . 56
Section 904. Effect of Supplemental Indentures . . . . . . 56
Section 905. Revocation and Effect of Consents . . . . . . 56
Section 906. Conformity with Trust Indenture Act . . . . . 56
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Section 907. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . 56
Section 908. Waiver of Compliance by Holders . . . . . . . 57
Section 909. Subordination Unimpaired . . . . . . . . . . 57
Section 910. Notice of Supplemental Indenture . . . . . . 57
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest . 57
Section 1002. Maintenance of Office or Agency . . . . . . . 57
Section 1003. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . . 58
Section 1004. Statement by Officers as to Compliance . . . 59
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article . . . . . . . . . . 59
Section 1102. Election to Redeem; Notice to Trustee . . . . 59
Section 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . 59
Section 1104. Notice of Redemption . . . . . . . . . . . . 60
Section 1105. Deposit of Redemption Price . . . . . . . . . 61
Section 1106. Securities Payable on Redemption Date . . . . 61
Section 1107. Securities Redeemed in Part . . . . . . . . . 62
ARTICLE TWELVE
CONVERSION OF SECURITIES
Section 1201. Applicability of Article . . . . . . . . . . 62
Section 1202. Exercise of Conversion Privilege . . . . . . 62
Section 1203. No Fractional Shares . . . . . . . . . . . . 63
Section 1204. Adjustment of Conversion Price . . . . . . . 64
Section 1205. Notice of Certain Corporate Actions . . . . . 64
Section 1206. Reservation of Shares of Common Stock . . . . 65
Section 1207. Payment of Certain Taxes Upon Conversion . . 65
Section 1208. Nonassessability . . . . . . . . . . . . . . 65
Section 1209. Effect of Consolidation or Merger on
Conversion Privilege . . . . . . . . . . . . 65
Section 1210. Duties of Trustee Regarding Conversion . . . 66
Section 1211. Repayment of Certain Funds Upon Conversion . . 67
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . . . . 67
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Section 1302. Defeasance and Discharge . . . . . . . . . . 67
Section 1303. Covenant Defeasance . . . . . . . . . . . . . 68
Section 1304. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . 68
Section 1305. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . . . 70
Section 1306. Reinstatement . . . . . . . . . . . . . . . . 71
ARTICLE FOURTEEN
SINKING FUNDS
Section 1401. Applicability of Article . . . . . . . . . . 71
Section 1402. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . 71
Section 1403. Redemption of Securities for Sinking Fund . . 72
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
Section 1501. Securities Subordinate to Senior Debt . . . . 72
Section 1502. Payment Over of Proceeds Upon Dissolution,
Etc. . . . . . . . . . . . . . . . . . . . . 72
Section 1503. Prior Payment to Senior Debt Upon
Acceleration of Securities . . . . . . . . . 74
Section 1504. No Payment When Senior Debt in Default . . . 74
Section 1505. Payment Permitted If No Default . . . . . . . 75
Section 1506. Subrogation to Rights of Holders of Senior
Debt . . . . . . . . . . . . . . . . . . . . 75
Section 1507. Provisions Solely to Define Relative Rights . 76
Section 1508. Trustee to Effectuate Subordination . . . . . 76
Section 1509. No Waiver of Subordination Provisions . . . . 76
Section 1510. Notice to Trustee . . . . . . . . . . . . . . 77
Section 1511. Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . 77
Section 1512. Trustee Not Fiduciary For Holders of Senior
Debt . . . . . . . . . . . . . . . . . . . . 77
Section 1513. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights . . . . . . 78
Section 1514. Article Applicable to Paying Agents . . . . . 78
Section 1515. Defeasance of This Article Fifteen . . . . . 78
Section 1516. Certain Conversions Deemed Payment . . . . . 78
ARTICLE SIXTEEN
REPAYMENT AT OPTION OF HOLDERS
Section 1601. Applicability of Article . . . . . . . . . . 79
Section 1602. Repayment of Securities . . . . . . . . . . . 79
Section 1603. Exercise of Option . . . . . . . . . . . . . 79
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Section 1604. When Securities Presented for Repayment
Become Due and Payable . . . . . . . . . . . 80
Section 1605. Securities Repaid in Part . . . . . . . . . . 80
NOTE: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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INDENTURE, dated as of _____________, between XXXXXX
INDUSTRIES, INC., a Delaware corporation (herein called the "Company"), having
its principal office at 000 Xxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000,
and _______________, a ___________duly organized and existing under the laws of
__________, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
subordinated debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as provided in
this Indenture.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be a part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act or the Securities Act of 1933, as amended, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles"
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with respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted at the date
of such computation;
(4) the words "Article" and "Section" refer to an Article
and Section, respectively, of this Indenture; and
(5) 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 unless the
context otherwise requires.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either (i) the board of directors
of the Company, the executive committee of such board of directors or any other
duly authorized committee of directors and/or officers appointed by such board
of directors or executive committee, or (ii) one or more duly authorized
officers of the Company to whom the board of directors of the Company or a
committee thereof has delegated the authority to act with respect to the
matters contemplated by this Indenture.
"Board Resolution" means (i) a copy of a resolution certified
by the Corporate Secretary or an Assistant Corporate Secretary of the Company
to have been duly adopted by the board of directors of the Company or a
committee thereof and to be in full force and effect on the date of such
certification or (ii) a certificate signed by the duly authorized officer or
officers of the Company to whom the board of directors of the Company or a duly
authorized committee thereof has delegated its authority (as described in the
definition of Board of Directors), and in each case, delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this 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.
"Common Stock" means, with respect to the Company, its common
stock, par value $.10 per share, and with respect to any Principal Subsidiary,
stock of any class, however designated, except stock which is non-participating
beyond fixed dividend and liquidation preferences and the holders of which have
either no voting rights or limited voting rights entitling them, only in the
case
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of certain contingencies, to elect less than a majority of the directors (or
persons performing similar functions) of such Principal Subsidiary, and shall
include securities of any class, however designated, which are convertible into
such Common Stock.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by (i) any two of the following
individuals: the Chairman, a Vice Chairman, the President or a Vice President,
or (ii) by one of the foregoing individuals and by any other Vice President,
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Corporate Secretary or an Assistant Corporate Secretary or any other
individual authorized by the Board of Directors for such purpose (as set forth
in a Board Resolution), and delivered to the Trustee.
"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 hereof is located at
_________________________.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section
1303.
"days" means calendar days.
"Debt" means (without duplication and without regard to any
portion of principal amount that has not accrued and to any interest component
thereof (whether accrued or imputed) that is not due and payable) with respect
to any Person, whether recourse is to all or a portion of the assets of such
Person and whether or not contingent, (i) every obligation of such Person for
money borrowed, (ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations incurred
in connection with the acquisition of property, assets or businesses, (iii)
every reimbursement obligation of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of
such Person, (iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business), (v)
every capital lease obligation of such Person, (vi) the maximum fixed
redemption or repurchase price of redeemable stock of such Person at the time
of determination, and (vii) every obligation of the type referred to in clauses
(i) through (vi) of another Person and all dividends of another Person the
payment of which, in either case, such Person has guaranteed or is responsible
or liable, directly or indirectly, as obligor or otherwise.
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"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Defeasible Series" has the meaning specified in Section 1304.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
depositary for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute thereto.
"Floating or Adjustable Rate Provision" means a formula or
provision, specified in or pursuant to a Board Resolution or an indenture
supplemental hereto, providing for the determination, whether pursuant to
objective factors or pursuant to the sole discretion of any Person (including
the Company), and periodic adjustment of the interest rate borne by a Floating
or Adjustable Rate Security.
"Floating or Adjustable Rate Security" means any Security
which provides for interest thereon at a periodic rate that may vary from time
to time over the term thereof in accordance with a Floating or Adjustable Rate
Provision.
"Global Security" means a Security that evidences all or part
of the Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities or a nominee
thereof.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"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,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
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"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 501(4) and Section 501(5).
"Officers' Certificate" means a certificate signed by (i) any
two of the following individuals: the Chairman, a Vice Chairman, the President
or a Vice President, or (ii) by one of the foregoing individuals and by any
other Vice President, the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Corporate Secretary or an Assistant Corporate
Secretary, of the Company, or any other individual authorized by the Board of
Directors for such purpose (as specified in a Board Resolution), and delivered
to the Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel to the Company, or who may be other counsel
reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption or
purchase money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
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16
(iv) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a 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, (A) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, and (B) Securities owned by (i) the
Company or any other obligor upon the Securities or (ii) any Subsidiary or of
such other obligor upon the Securities 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 a Responsible Officer of 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 Subsidiary or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PIK Securities" means any series of Securities where interest
is payable, at the election of the Company or a holder of such Security, in
additional Securities.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"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 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Principal Subsidiary" means any Subsidiary which at the time
of determination has, (A) assets which, as of the date of the Company's most
recently prepared quarterly consolidated
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17
balance sheet, constituted at least 15% of the Company's total assets on a
consolidated basis as of such date, or (B) revenues for the 12-month period
ending on the date of the Company's most recently prepared quarterly
consolidated statement of income which constituted at least 15% of the
Company's total revenues on a consolidated basis for such period or (C) net
earnings for the 12-month period ending on the date of the Company's most
recently prepared quarterly consolidated statement of income which constituted
at least 15% of the Company's total net earnings on a consolidated basis for
such period.
"Proceeding" has the meaning specified in Section 1502.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee with responsibility for the administration of
this Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company to the
extent that such claim for post-petition interest is allowed in such
proceeding), on Debt, whether incurred on or prior to the date of the Indenture
or thereafter incurred, unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Securities or to other
Debt which is pari passu with, or subordinated to the Securities; provided,
however, that Senior Debt shall not be deemed to include (1) the Securities,
(2) the Debt referred to in clause (vi) of the definition of Debt or (3) the 5%
Convertible Subordinated Notes due 2006 issued pursuant to that certain
Indenture, dated as of May 15, 1996, between the Company and Marine Midland
Bank, as trustee, as supplemented from time to time.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
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18
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the voting
power of which is controlled, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting power" means the
power to vote for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, if
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended, and
except as provided in Section 906.
"U.S. Government Obligations" has the meaning specified in
Section 1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act.
Each such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (excluding certificates
provided for in Section 1004) shall include
(1) a statement that each Person signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
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19
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such Person,
such Person has made such examination or investigation as is necessary
to enable such Person to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such Person, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which its certificate or
opinion is based are erroneous. Any such certificate or opinion of 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.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate, opinion or representation by an accountant or firm
of accountants in the employ of the Company, unless such officer or counsel, as
the case may be, knows, or in the exercise of reasonable care should know, that
the certificate, opinion or representation with respect to such accounting
matters upon which its certificate, statement or opinion may be based is
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 104. Acts of Holders; Record Dates. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially
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20
similar tenor signed by such Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments 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 601) 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 or her the
execution thereof. Where such execution is by a signer acting in a capacity
other than such signer's individual capacity, such certificate or affidavit
shall also constitute sufficient proof of such signer's authority. The fact and
date of the execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by
the Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or permitted to be
given or taken by Holders of Outstanding Securities of such series. If not set
by the Company prior to the first solicitation of a Holder of Securities of
such series made by any Person in respect of any such action, or, in the case
of any such vote, prior to such vote, the record date for any such action or
vote shall be the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register or by a certificate of the Security Registrar.
(e) 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.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part
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21
of the principal amount of such Security or by one or more duly appointed
agents each of which may do so pursuant to such appointment with regard to all
or any different part of such principal amount.
Section 105. Notices, Etc. to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) 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;
provided, however, that the same shall be made, given, furnished or
filed only when received by a Responsible Officer of the Trustee at
its Corporate Trust Office, Attention: Corporate Trust Department, or
(2) 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 it at the address of its
principal office specified in the first paragraph of this instrument;
provided, however, that the same shall be made, given, furnished or
filed only when received by the Company, Attention: President, or at
any other address previously furnished in writing to the Trustee by
the Company.
Section 106. Notice to Holders; Waiver. Where this Indenture
provides for notice 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 its
address as it appears in the Security Register, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice; provided, however, that the Company or the Trustee, upon
a good faith determination that mailing is in the circumstances impractical,
may give such notice by any other method which, in the reasonable belief of the
Company or, in the case of the Trustee, of the Company and the Trustee, is
likely to be received by the Holders. 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
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In 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 for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to
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22
be a part of and govern this Indenture, the required provision shall control.
If any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as
the case may be.
Section 108. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. 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 110. 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 111. 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 112. Governing Law. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, BUT WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 113. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date or Stated Maturity of any
Security or the last day on which a Holder has the right to convert a Security
at a particular conversion price shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) or conversion need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue with respect to such payment
for the period from and after such Interest Payment Date, Redemption Date,
Repayment Date or Stated Maturity, as the case may be.
Section 114. Personal Immunity from Liability for
Incorporators, Stockholders, Etc. No recourse shall be had for the payment of
the principal of or premium, if any, or interest, if any, on any Security, or
for any claim based thereon, or otherwise in respect of any Security, or based
on or in respect of this Indenture or any indenture supplemental hereto,
against any incorporator, or against any past, present or future stockholder,
director or officer, as such, of the Company or of any
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23
successor corporation, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise, all
such liability being expressly waived and released as a condition of, and as
consideration for, the execution of this Indenture and the issue of the
Securities.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally. The Securities of each series
shall be in substantially the form set forth in this Article, 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 the rules of any securities exchange or Depositary
therefor or as may, consistent herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
If the form of Securities of any series is established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Corporate Secretary or an Assistant Corporate Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
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 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code of
1986, as amended and the regulations thereunder.]
XXXXXX INDUSTRIES, INC.
No. ________ [$]_____
XXXXXX INDUSTRIES, INC., a Delaware corporation (herein called
the "Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________, or registered assigns, the principal sum of [$]
___________[__________ Dollars] [if applicable, insert one or more foreign
currencies, currency units or composite currencies] [if the Security is to bear
interest prior to Maturity, insert -- and to pay interest thereon from or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, [semi-annually on _______ and _________ in each year] [if other
than semi-annual payments, insert frequency of payments and payment dates],
commencing
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________________, at [if the Security is to bear interest at a fixed rate,
insert -- the rate of ____% per annum] [if the Security is a Floating or
Adjustable Rate Security, insert -- a rate per annum [computed-determined] in
accordance with the [insert defined name of Floating or Adjustable Rate
Provision] set forth below] [if the Security is to bear interest at a rate
determined with reference to an index, refer to description of index below],
until the principal hereof is paid or made available for payment [if
applicable, insert -- and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of _____% per annum on any overdue
installment of interest]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the ______ or _______ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said
Indenture).
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Debt, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
[If the Securities are Floating or Adjustable Rate Securities
with respect to which the principal of or any premium or interest may be
determined with reference to an index, insert the text of the Floating or
Adjustable Rate Provision.]
[If the Security is not to bear interest prior to Maturity,
insert -- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security
shall bear interest at the rate of ___% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of ___% per annum (to the extent
that the payment of such interest shall be legally enforceable), which shall
accrue from the date of such demand for payment
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25
to the date payment of such interest has been made or duly provided for, and
such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in __________, in
such coin or currency of [if applicable, insert -- the United States of
America] [if applicable, insert another currency, currency unit or composite
currency] as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register).
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
XXXXXX INDUSTRIES, INC.
By
-----------------------------------
Attest:
--------------------------
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of ________________ (herein called
the "Indenture"), between the Company and __________, as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [,
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limited in aggregate principal amount to [$] _________[if applicable, insert --
relevant amount in applicable foreign currency, currency unit or composite
currency]].
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 15 days' nor more than 60 days' notice
by mail, [if applicable, insert -- (1) on _____________ in any year commencing
with the year ____ and ending with the year _____ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after ______________], as a whole
or in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [on or before
________, ___% and if redeemed] during the 12-month period beginning ________
of the years indicated,
Redemption Redemption
Year Price Year Price
--------------- ---------------------- --------------- ---------------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 15 days' nor more than 60 days' notice
by mail, (1) on _____ in any year commencing with the year _____ and ending
with the year _____ through operation of the sinking fund for this series at
the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after ______], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-month
period beginning _____ of the years indicated,
Redemption Price For
Redemption Price For Redemption Otherwise
Redemption Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
--------------- -------------------------------- -----------------------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity in on or prior to
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27
such Redemption Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[The sinking fund for this series provides for the redemption
on ____ in each year beginning with the year ____ and ending with the year ____
of [not less than [$] ___________ ("mandatory sinking fund") and not more than]
[$] ___________ aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the inverse
order in which they become due).]
[If the Security is subject to redemption, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance at any time
of (1) the entire indebtedness of this Security or (2) certain restrictive
covenants and Events of Default with respect to this Security, in each case
upon compliance with certain conditions set forth in the Indenture.
[If the Security is convertible into Common Stock of the
Company, insert -- Subject to the provisions of the Indenture, the Holder of
this Security is entitled, at its option, at any time on or before [insert
date] (except that, in case this Security or any portion hereof shall be called
for redemption, such right shall terminate with respect to this Security or
portion hereof, as the case may be, so called for redemption at the close of
business on the date fixed for redemption as provided in the Indenture unless
the Company defaults in making the payment due upon redemption), to convert the
principal amount of this Security (or any portion hereof which is $1,000 or an
integral multiple thereof [if applicable, insert the equivalent thereof in one
or more foreign currencies, currency units or composite currencies]), into
fully paid and non-assessable shares (calculated as to each conversion to the
nearest 1/1000th of a share) of the Common Stock of the Company, as said shares
shall be constituted at the date of conversion, at the conversion price of [$]
__________ principal amount of Securities for each share of Common Stock, or at
the adjusted conversion price in effect at the date of conversion determined as
provided in the Indenture, upon surrender of this Security, together with the
conversion notice hereon duly executed, to the Company at the designated office
or agency of the Company in ___________, accompanied (if so required by the
Company) by instruments of transfer, in form satisfactory to the Company and to
the Trustee, duly executed by the Holder or by its duly authorized attorney in
writing. Such surrendering shall, if made during any period beginning at the
close of business on a Regular Record Date and ending at the opening of
business on the Interest Payment Date next following such Regular Record Date
(unless this Security or the portion being converted shall have been called for
redemption on a Redemption Date during such period), also be accompanied by
payment of an amount equal to the Interest payable on such Interest Payment
Date on the principal amount of this Security then being converted. Subject to
the aforesaid requirement for payment and, in the case of a conversion after
the Regular Record Date next
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preceding any Interest Payment Date and on or before such Interest Payment
Date, to the right of the Holder of this Security (or any Predecessor Security)
of record at such Regular Record Date to receive an installment of interest
(with certain exceptions provided in the Indenture), no adjustment is to be
made on conversion for interest accrued hereon or for dividends on shares of
Common Stock issued on conversion. The Company is not required to issue
fractional shares upon any such conversion, but shall make adjustment therefor
in cash on the basis of the current market value of such fractional interest as
provided in the Indenture. The conversion price is subject to adjustment as
provided in the Indenture. In addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company is a party or the sale
of substantially all of the assets of the Company, the Indenture shall be
amended, without the consent of any Holders of Securities, so that this
Security, if then outstanding, will be convertible thereafter, during the
period this Security shall be convertible as specified above, only into the
kind and amount of securities, cash and other property receivable upon the
consolidation, merger or sale by a holder of the number of shares of Common
Stock into which this Security might have been converted immediately prior to
such consolidation, merger or sale (assuming such holder of Common Stock failed
to exercise any rights of election and received per share the kind and amount
received per share by a plurality of non-electing shares) [, assuming if such
consolidation, merger or sale is prior to [date], that this Security were
convertible at the time of such consolidation, merger or sale at the initial
conversion price specified above as adjusted from to such time pursuant to the
Indenture]. In the event of conversion of this Security in part only, a new
Security or Securities for the unconverted portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.]
[If the Security is convertible into other securities or
property, specify the conversion features and the form of conversion notice
pursuant to Section 206 hereof.]
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.]
[If the Security is an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, an amount of principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to [Insert formula for
determining the amount]. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits 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 a
majority in principal amount of the Securities at the time outstanding of each
series to
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29
be affected, with certain exceptions as therein provided with respect to
certain modifications or amendments which may not be made without the consent
of each Holder of such Security affected thereby. The Indenture also permits
certain amendments and modifications thereto from time to time by the Company
and the Trustee without the consent of the Holders of any series of the
Securities to be affected thereby for certain specified purposes, including
curing ambiguities, defects or inconsistencies and making any such change that
does not adversely affect the rights of any Holder of such series of the
Securities, as provided therein.
The Indenture contains provisions permitting the Holders of
specified percentages in 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 Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security 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 Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and Interest on this Security at the times, place and [rate(s)], 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 Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof [if applicable, insert the equivalent thereof in one or more foreign
currencies, currency units, or composite currencies]. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of
Securities of this series and of like tenor 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.
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30
Prior to due presentment of this 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 this Security is registered as the owner
hereof for all purposes, whether or not this Security is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse shall be had for the payment of the principal of
(and premium, if any) or interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities. Every
Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form or such other legends as may be required:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary
or a nominee thereof. This Security may not be transferred to, or
registered or exchanged for Securities registered in the name of, any
Person other than the Depositary or a nominee thereof and no such
transfer may be registered, except in the limited circumstances
described in the Indenture. Every Security authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of,
this Security shall be a Global Security subject to the foregoing,
except in such limited circumstances.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-------------------------------,
as Trustee
By
------------------------------
Authorized Signatory
Section 206. Form of Conversion Notice.
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31
To Xxxxxx Industries, Inc.
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof (which is
$1,000 or an integral multiple thereof [if applicable, insert the equivalent
thereof in one or more foreign currencies, currency units or composite
currencies]) below designated, into shares of Common Stock of the Company in
accordance with the terms of the Indenture referred to in this Security, and
directs that the shares issuable and deliverable upon the conversion, together
with any check in payment for fractional shares and any Securities representing
any unconverted principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below. If
this Notice is being delivered on a date after the close of business on a
Regular Record Date and prior to the opening of business on the related
Interest Payment Date (unless this Security or the portion thereof being
converted has been called for redemption on a Redemption Date within such
period), this Notice is accompanied by payment of an amount equal to the
interest payable on such Interest Payment Date of the principal of this
Security to be converted. If shares are to be issued in the name of a Person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect hereto. Any amount required to be paid by the undersigned on
account of interest accompanies this Security.
Principal Amount to be Converted
(in an integral multiple of
$1,000, if less than all [if applicable,
insert the equivalent thereof in one
or more foreign currencies, currency
units or composite currencies]):
[$]_____________
Dated
--------------------- -------------------------------------------
Signature
Signature(s) must be guaranteed by an
institution which is a member of one of
the following recognized signature
Guarantee Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP);
(ii) The New York Stock Exchange Medallion
Program (MNSP); (iii) The Stock Exchange
Medallion Program (SEMP) or (iv) another
guarantee program acceptable to the
Trustee.
-------------------------------------------
Signature Guarantee
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32
Fill in for registration of shares of Common Stock and
Security if to be issued otherwise than to the registered holder.
(Name)
(Address)
Please print Name and Address (including zip code number)
Social Security or other Taxpayer
Identifying Number_____________
SECTION 207. Securities Issuable in Global Form.
If Securities of or within a series in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (11) of
Section 301, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be
increased or decreased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304. Subject to the provisions of Section
303 and, if applicable, Section 304, the Trustee shall deliver and redeliver
any Security in permanent global form in the manner and upon instructions given
by the Person or Persons specified therein or in the applicable Company Order.
If a Company Order pursuant to Section 303 or Section 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
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33
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security the Holder
of such permanent global Security in registered form.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in
one or more series. There shall be established in or pursuant to a Board
Resolution or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of any
other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Sections 304, 305,
306, 907, 1107 or 1202 and except for any Securities which, pursuant
to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates, or the method or methods (and
related procedures) by which such date or dates will be determined or
extended, on which the principal of the Securities of the series is
payable;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, or the Floating or Adjustable Rate
Provision pursuant to which such rates shall be determined, the date
or dates from which such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable and the Regular
Record Date for any interest payable on any Interest Payment Date;
(6) whether the Securities of the series would be secured
pursuant to Section 901(7);
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(7) the place or places where the principal of (and
premium, if any) and interest, if any, on Securities of the series
shall be payable;
(8) if applicable, the period or periods within which,
the price or prices at which (including premium, if any) and the terms
and conditions upon which Securities of the series shall be redeemed,
in whole or in part, at the option of the Company pursuant to a
sinking fund or otherwise;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(10) if applicable, the terms of any right to convert or
exchange Securities of the series into shares of Common Stock of the
Company or other securities or property of the Company or other
issuers;
(11) if other than denominations of $1,000 and any
integral multiple thereof (or the equivalent thereof in one or more
foreign currencies, currency units or composite currencies), the
denominations in which Securities of the series shall be issuable;
(12) if the amount of payments of principal of (or
premium, if any) or interest, if any, on any Securities of the series
may be determined with reference to one or more indices, the manner in
which such amounts shall be determined;
(13) if other than currency of the United States, one or
more foreign currencies, currency units or composite currencies in
which the Securities of the series are to be denominated;
(14) if other than the coin or currency in which the
Securities of the series are denominated, the coin or currency in
which payment of the principal of (and premium, if any) and interest
on the Securities of the series shall be payable;
(15) the price or prices (expressed as a percentage of the
principal amount thereof) at which the Securities will be issued and,
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 502 or provable under any applicable federal or state
bankruptcy or similar law pursuant to Section 503;
(16) if applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the Depositary or Depositaries
for such Global Security or Global Securities and any circumstance
other than
- 24 -
35
those set forth in Section 305 in which any such Global Security may
be transferred to, and registered and exchanged for Securities
registered in the name of, a Person other than the Depositary for such
Global Security or a nominee thereof and in which any such transfer
may be registered;
(17) whether the Securities are to be issued as Original
Issue Discount Securities;
(18) whether the interest, if any, on the Securities is to
be payable, at the election of the Company or a holder thereof, in
cash or in PIK Securities and the period or periods within which, and
the terms and conditions upon which, such election may be made;
(19) any other event or events of default applicable with
respect to the Securities of the series in addition to those provided
in Section 501(1) through (7);
(20) any other covenant or warranty included for the
benefit of Securities of the series in addition to (and not
inconsistent with) those included in this Indenture for the benefit of
Securities of all series, or any other covenant or warranty included
for the benefit of Securities of the series in lieu of any covenant or
warranty included in this Indenture for the benefit of Securities of
all series, or any provision that any covenant or warranty included in
this Indenture for the benefit of Securities of all series shall not
be for the benefit of Securities of the series, or any combination of
such covenants, warranties or provisions;
(21) any restriction or condition on the transferability
of the Securities of the series;
(22) any authenticating or paying agents, registrars,
conversion agents or any other agents with respect to the Securities
of the series; and
(23) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture, except as
permitted by Section 901(6)).
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 the Board Resolution referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of such action shall be delivered
to the Trustee.
Section 302. 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 301. 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 $1,000 and any integral multiple
- 25 -
36
thereof. [if applicable, insert the equivalent thereof in one or more foreign
currencies, currency units or composite currencies.]
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman, a
Vice Chairman, its President, any Vice President, its Treasurer or Assistant
Treasurer, its Controller or Assistant Controller under its corporate seal
reproduced thereon attested by its Corporate Secretary or one of its Assistant
Corporate Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Securities bearing the
- 26 -
37
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. Minor typographical and other minor errors in the
text of any Security or minor defects in the seal or facsimile signature on any
Security shall not affect the validity or enforceability of such Security if it
has been duly authenticated and delivered by the Trustee.
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 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 or indentures
supplemental hereto as permitted by Sections 201 and 301, 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 601) shall be fully protected in relying upon,
an Opinion of Counsel stating,
(a) if the form of such Securities has been established
by or pursuant to Board Resolutions or indentures supplemental hereto
as permitted by Section 201, that such form has been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolutions or indentures supplemental hereto
as permitted by Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(c) 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 transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights generally and to general equity principles.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors, executive committee, or a
trust committee of directors or committee of Responsible Officers of the
Trustee shall determine that such action would expose the Trustee to personal
liability to existing Holders of Securities.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution
otherwise required pursuant to Section 301 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraph at or prior to
the time of
- 27 -
38
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
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. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers of
the Company executing such Securities may determine, as evidenced by their
execution of such Securities.
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 in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and
of a like aggregate principal amount and tenor. 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 and
tenor.
Section 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable procedures as it or the Trustee may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
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39
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment 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 and tenor.
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 and tenor, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer, exchange, redemption or payment shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company or the Trustee 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 304, 907, 1107 or 1202 not
involving any transfer.
Neither the Company nor the Trustee shall 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 1103 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.
Notwithstanding any other provision in this Indenture, no
Global Security may be transferred to, or registered or exchanged for
Securities registered in the name of, any Person other than the Depositary for
such Global Security or any nominee thereof, and no such transfer may be
registered, unless (1) such Depositary (A) notifies the Company and the Trustee
that it is unwilling or unable to continue as Depositary for such Global
Security or (B) ceases to be a clearing agency registered under the Exchange
Act, (2) the Company executes and delivers to the Trustee a Company Order that
such Global Security shall be so transferable, registrable and exchangeable,
and such transfers shall be registrable, (3) there shall have occurred and be
continuing an Event of Default
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with respect to the Securities evidenced by such Global Security or (4) there
shall exist such other circumstances, if any, as have been specified for this
purpose as contemplated by Section 301. Notwithstanding any other provision in
this Indenture, a Global Security to which the restriction set forth in the
preceding sentence shall have ceased to apply may be transferred only to, and
may be registered and exchanged for Securities registered only in the name or
names of, such Person or Persons as the Depositary for such Global Security
shall have directed and no transfer thereof other than such a transfer may be
registered.
Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security to which
the restriction set forth in the first sentence of the preceding paragraph
shall apply, whether pursuant to this Section, Section 304, 306, 907, 1107 or
1202 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If there shall be delivered to the Company and the Trustee (i) a mutilated
Security, or (ii) evidence to their satisfaction of the destruction, loss or
theft of any Security and in either case 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 the Trustee shall authenticate and deliver, in lieu of any such
mutilated, 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.
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.
Upon the issuance of any new Security under this Section, the
Company or the Trustee may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any 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.
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.
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Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any
series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements reasonably satisfactory
to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 15 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
given to each Holder of Securities of such series, in the manner set
forth in Section 106, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so given, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Subject to the provisions of Section 1202, in the case of any
Security which is converted after any Regular Record Date and on or prior to
the next succeeding Interest Payment Date (other than any Security the
principal of (or premium, if any, on)) which shall become due and payable,
whether at a Stated Maturity or by declaration of acceleration, call for
redemption, or otherwise, prior to such Interest Payment Date), interest whose
Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or any one or more Predecessor Securities)
is registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable.
Section 308. 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 any premium and (subject to Section 307)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.
Section 309. Cancellation. All Securities surrendered for
payment, redemption, registration of transfer or exchange or for credit against
any sinking fund payment or for conversion shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held
by the Trustee shall be disposed of as directed by a Company Order or, in the
absence of such Company Order, in accordance with the Trustee's customary
practice. Acquisition by the Company of any Security shall not operate as a
redemption or satisfaction of the indebtedness represented by such Security
unless and until the same is delivered to the Trustee for cancellation.
Section 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 for Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect (except as
to any surviving rights of conversion, registration of transfer or exchange of
Securities of a series herein expressly provided for) with respect to
Securities of any series, and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to a series, when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) Securities of such series for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements reasonably satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee in trust
irrevocably (A) money (in United States dollars) in an amount, or (B)
U.S. Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge the entire indebtedness on such
Securities of such series not theretofore delivered to the Trustee for
cancellation, for principal of (and premium, if any) and interest to
the date of such deposit (in the case of Securities of such series
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
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(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture with respect to such series have been
complied with.
In the event there are Securities of two or more series
outstanding 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 a particular series as to which it is
Trustee and if the other conditions thereto are met. In the event that there
are two or more Trustees hereunder, then the effectiveness of any such
instrument shall be conditioned upon receipt of such instruments from all
Trustees hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to a particular series, the obligations of the Company
to the Trustee under Section 607, the obligations of the Company to any
Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive until there are no Securities Outstanding with respect to a
particular series and the obligations of the Company and the Trustee with
respect to all other series of Securities shall survive.
Section 402. Application of Trust Fund. Subject to provisions
of the last paragraph of Section 1003, all amounts deposited with the Trustee
pursuant to Section 401 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 (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal and any premium and interest for whose payment such
funds have been deposited with the Trustee. Money deposited pursuant to this
section not in violation of this Indenture shall not be subject to claims of
the holders of Senior Debt under Article Fifteen.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default" whenever used with respect to Securities of
a series means any one of the following events and such other events as may be
established with respect to the Securities of such series as contemplated by
Section 301 hereof (whether or not it shall be occasioned by the provisions of
Article Fifteen):
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(1) Default in the payment of any installment of interest
upon any of the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days; or
(2) Default in the payment of the principal of or
premium, if any, on any of the Securities of such series as and when
the same shall become due and payable either at maturity, upon
redemption, by declaration of acceleration or otherwise and
continuance of such default for a period of ten days; or
(3) Default in the making of any sinking fund payment,
whether mandatory or optional, as and when the same shall become due
and payable by the terms of the Securities of such series and
continuance of such default for a period of ten days; or
(4) Failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company contained in this Indenture (other than those set forth
exclusively in the terms of any other particular series of Securities
established as contemplated by this Indenture for the benefit of such
other series) and written notice of such failure, stating that such
notice is a "Notice of Default" hereunder, and requiring the Company
to remedy the same, shall have been given by registered or certified
mail, return receipt requested, to the Company by the Trustee, or to
the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of that
series, and such failure shall have continued unremedied for a period
of 90 days after the date of the Company's receipt of such Notice of
Default; or
(5) (i) An event of default, as defined in any
indenture or instrument evidencing or under which the Company or any
Principal Subsidiary shall have outstanding indebtedness for borrowed
money in a principal amount in excess of $25,000,000, shall happen and
be continuing and such indebtedness shall have been accelerated so
that the same shall be or become due and payable prior to the date on
which the same would otherwise have become due and payable or (ii) the
Company or any Principal Subsidiary shall default in the payment at
final maturity of outstanding indebtedness for borrowed money in a
principal amount in excess of $25,000,000, and such acceleration or
default at maturity shall not be waived, rescinded or annulled within
30 days after written notice thereof, stating that such notice is a
"Notice of Default" hereunder, shall have been given to the Company by
the Trustee (if such event be known to it), or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series; provided, however, that
if such acceleration under such indenture or instrument or default at
maturity shall be remedied or cured by the Company or Principal
Subsidiary, or waived, rescinded or annulled by the requisite holders
of such indebtedness, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of either the
Trustee or any of the Holders; or
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(6) A decree or order by a court having jurisdiction in
the premises shall have been entered adjudging the Company a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of the Company
under any applicable Federal or State bankruptcy or similar law, and
such decree or order shall have continued undischarged and unstayed
for a period of 90 days; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver,
liquidator, trustee, assignee, sequestrator or similar official in
bankruptcy or insolvency of the Company or of all or substantially all
of its property, or for the winding up or liquidation of its affairs,
shall have been entered, and such decree or order shall have continued
undischarged and unstayed for a period of 90 days; or
(7) The Company shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer
or consent seeking reorganization, arrangement, adjustment or
composition under any applicable Federal or State bankruptcy or
similar law, or shall consent to the filing of any such petition, or
shall consent to the appointment of a receiver, liquidator, trustee,
assignee, sequestrator or similar official in bankruptcy or insolvency
of the Company or of all or substantially all of its property, or
shall make an assignment for the benefit of creditors, or shall admit
in writing its inability to pay its debts generally as they become due
and its willingness to be adjudged a bankrupt, or corporate action
shall be taken by the Company in furtherance of any of the aforesaid
purposes; or
(8) Any other Event of Default provided with respect to
Securities of that series.
The Company shall deliver to the Trustee written notice of any
Event of Default or event which with the giving of notice or lapse of time or
both would become an Event of Default under clauses (4), (5), (6) and (7)
hereof within 30 days of knowledge thereof by the Company, provided that in the
case of clause (4) no such notice will be required to be given by the Company
if such default shall be cured by the Company within such 30 day period.
The Trustee shall not be charged with knowledge of any default
(as defined in Section 602) or Event of Default unless written notice thereof
shall have been given to the Trustee by the Company, the Paying Agent of that
series (provided that no such notice shall be required to be given if the
Trustee acts as Paying Agent of such series), or with respect to a default or
an Event of Default under clause (5) of this Section by the holder of any such
indebtedness or an agent of the holder of any such indebtedness or by the
trustee then acting under any such indenture or other instrument under which
such default shall have occurred, or by Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series.
Section 502. Acceleration of Maturity; Rescission and
Annulment. 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 Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities
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of that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the terms thereof)
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) shall
become immediately due and payable.
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 a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Securities of
that series,
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due otherwise
than by such declaration of acceleration and any interest
thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section
607, except such costs and expenses as are a result of
negligence or bad faith on the part of the Trustee; and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of and
interest, if any, on the Securities of that series which have become
due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(1) 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 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof and
continuance of such default for a period of ten days,
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the Company will, upon written 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 any premium and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal and premium and 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 and any other amounts due the
Trustee under Section 607, except such costs and expenses, as are a result of
negligence or bad faith on the part of the Trustee. Until such demand is made
by the Trustee, the Company may pay the principal of and premium, if any, and
interest, if any, on the Securities of any series to the registered Holders,
whether or not the Securities of such series are overdue.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim. In case of any
judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
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 607, except such costs and expenses
as are a result of negligence or bad faith on the part of the Trustee.
No provision of this Indenture 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; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
Section 505. 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
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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
except such costs and expenses, as are a result of negligence or bad faith on
the part of the Trustee, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected. Subject to
Article Fifteen, 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 any premium 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:
First: To the payment of all amounts due the Trustee under
Section 607;
Second: To the payment of the amounts then due and unpaid for
principal of and any premium 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 any
premium and interest, respectively; and
Third: To the payment of the remainder, if any, to the Company
or any other Person lawfully entitled thereto.
Section 507. 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
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory in form and substance to the Trustee
against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
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(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders 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
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to Convert. Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right,
which in absolute and unconditional, to receive payment of the principal of and
any premium and (subject to Section 307) any interest on such Security on the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to convert such Securities in
accordance with the terms thereof and to institute suit for the enforcement of
any such payment or such right of conversion, and such rights shall not be
impaired without the consent of such Holder.
Section 509. 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 510. 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 306, 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 511. 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. Subject to Section 507, 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.
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Section 512. Control by Holders. With respect to the
Securities of any series, the Holders of not less than a majority in principal
amount of the Outstanding Securities of such 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 respect to the Securities of such series; provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part
in such direction, and
(3) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults. The Holders of not less
than a majority 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
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any 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 514. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided,
however, that neither this Section 514 nor the Trust Indenture Act will be
deemed to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or the Trustee.
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ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities. The duties
and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act.
(a) If an Event of Default with respect to Securities of
any series at the time Outstanding has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in its
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties
that are specifically set forth in this Indenture and no
others and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, in the absence of bad faith on its part,
upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. The
Trustee, however, shall examine such certificates and opinions
to determine whether or not they conform to the requirements
of this Indenture but need not verify the accuracy of the
contents thereof.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act, or its own
wilful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
512.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c) of
this Section.
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(e) The Trustee may refuse to perform any duty or
exercise any right or power unless it receives indemnity reasonably
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other
funds, except to the extent required by law.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, 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. 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 602. Notice of Defaults. If a default or Event of
Default occurs and is continuing hereunder with respect to Securities of any
series, and if such default or Event of Default is known to a Responsible
Officer of the Trustee, the Trustee shall mail the Holders of Securities of
such series notice of such default within 90 days after it occurs; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. Except in
the case of a default in payment on any Security of any series or in the
payment of any sinking fund installment, the Trustee may withhold notice if and
so long as a trust committee of directors or Responsible Officers of the
Trustee in good faith determines that withholding the notice is in the interest
of Holders of Securities of such series. 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.
Section 603. Certain Rights of Trustee. Subject to the
provisions of Section 601:
(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 may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any
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action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such Counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory in form and substance to the Trustee
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall upon
reasonable notice to the Company be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney at a time and place acceptable to the Company;
(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;
(h) the permissive right of the Trustee to take or
refrain from taking any actions enumerated in this Indenture shall not
be construed as a duty and the Trustee shall not be answerable for
taking or refraining from taking such actions other than for its own
negligence or willful misconduct; and
(i) the Trustee shall not be liable for any action it
takes or omits to take in good faith which it reasonably believes to
be authorized or within its rights or powers conferred upon it by this
Indenture.
Section 604. Not Responsible for Recitals or Issuance
of Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and 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.
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The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
Section 605. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
Section 606. 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 in writing with the
Company.
Section 607. Compensation and Reimbursement. The Company
agrees
(1) 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);
(2) except as otherwise expressly provided
herein, to reimburse the Trustee upon its written 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
reasonable expenses and disbursements of its agents and
outside counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense (including
the reasonable fees and expenses of legal counsel) 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 and the performance of its duties hereunder,
including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties
hereunder.
To secure the Company's payment obligations under this
Section, the Trustee shall have a lien prior to the Securities on all money or
property of the Company held or collected by the Trustee in its capacity as
Trustee or as Paying Agent hereunder (but not in any other capacity), except
that held in trust to pay principal of (and premium, if any) or interest on
particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 501(6) or (7) occurs with respect to any
series of Securities, the expenses and
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the compensation for the services are intended to constitute expenses of
administration under any Federal or State bankruptcy law or similar law.
The Company's obligations under this Section 607 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article Four or Article
Thirteen hereof and the termination of this Indenture.
Section 608. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire any conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to the
Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000 or is a subsidiary of a corporation
which shall be a Person that has a combined capital and surplus of at least
$50,000,000 and which unconditionally and irrevocably guarantees the
obligations of the Trustee hereunder upon terms satisfactory to the Company. If
such Person 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 Person 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.
Section 610. 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 611.
(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 611 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 the Securities of 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.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request thereof by the Company or by any
Holder who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) 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, (i) the
Company by a Board Resolution may remove the Trustee with
respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of itself 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 be
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 series) and shall
comply with the applicable requirements of Section 611. 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 611, 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 and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of itself 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 the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the manner
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provided in Section 106. 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 611. 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, subject
to its lien, if any, provided for in Section 607.
(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 such series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to
transfer 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, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustee co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(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
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all such rights, powers and trusts referred to in paragraphs (a) and (b) of
this Section, as the case may be.
(d) No successor shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 612. 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 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 613. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent. The Trustee
may with the consent of the Company 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 original issue and upon exchange, registration of transfer, partial
conversion or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee 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 $50,000,000 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
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cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation 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.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee or the
Company may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company
or the Trustee, as the case may be. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall mail written notice of such appointment by
first-class mail, postage prepaid, to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series 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 therein
referred to in the within-mentioned Indenture.
----------------------------------------,
as Trustee
By
-----------------------------------------
as Authenticating Agent
By
---------------------------------------
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 10 days after each
Regular Record Date in each year, a list for each series of
Securities, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of such series as of
the preceding Regular Record Date, and
(b) 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;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for the Securities of a series, no such list need be furnished with
respect to such series of Securities.
Section 702. 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 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall
be as provided by the Trust Indenture Act.
(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 any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act or other applicable law.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times
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and in the manner provided pursuant thereto. To the extent that any such report
is required by the Trust Indenture Act with respect to any 12 month period,
such report shall cover the 12 month period ending July 15 and shall be
transmitted by the next succeeding September 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange 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.
Section 704. Reports by Company. The Company shall file with
the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act. Any information, documents or reports required to be
filed by the Company with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, OR SALE OF ASSETS
Section 801. Company May Consolidate, Etc. Only on Certain
Terms. The Company shall not consolidate with or merge into any other Person or
sell its properties and assets as, or substantially as, an entirety to any
Person, and the Company shall not permit any Person to consolidate with or
merge into the Company, unless:
(1) the Company will be the surviving or
resulting entity or, in case the Company shall consolidate with
or merge into another Person or sell its properties and assets
as, or substantially as, an entirety to any Person, the Person
formed by such consolidation or into which the Company is
merged or the Person which purchases the properties and assets
of the Company as, or substantially as, an entirety shall be a
corporation, partnership or trust, shall be organized and
validly 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 reasonably
satisfactory to the Trustee, all of the obligations of the
Company under the Securities and the Indenture and the
conversion rights, if any, shall be provided for in accordance
with Article Twelve, by supplemental indenture reasonably
satisfactory in form to the Trustee, executed and delivered to
the Trustee, by the Person (if other than the Company) formed
by such consolidation or into which the Company shall have been
merged or by the Person which shall have acquired the Company's
assets;
(2) immediately after giving effect to such
transaction, no Event of Default shall have happened and be
continuing; and
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(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or sale and, if a supplemental
indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 802. Successor Substituted. Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any sale
of the properties and assets of the Company as, or substantially as, an
entirety in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. 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 reasonably
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person
to the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) 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
(3) to add any additional Events of Default for
the benefit of the Holders of all or any series of Securities
(and if such additional Events of Default are to be for the
benefit of less than all series of Securities, stating that
such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) 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 or not registrable as to principal, and with or
without interest
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coupons, or to permit or facilitate the issuance of Securities
in uncertificated form; or
(5) 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 of any series
denominated in one or more foreign currencies, currency units
or composite currencies; or
(6) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more series
of Securities, including, without limitation, with respect to
any of the provisions set forth in Article Fifteen, provided
that any such addition, change or elimination (i) shall
neither (A) apply to any Security of any series created prior
to the execution of such supplemental indenture and entitled
to the benefit of such provision nor (B) modify the rights of
the Holder of any such Security with respect to such provision
or (ii) shall become effective only when there is no such
Security Outstanding; or
(7) to secure the Securities of any series; or
(8) to establish the form or terms of Securities
of any series as permitted by Sections 201 and 301; or
(9) 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 611(b); or
(10) to cure any ambiguity, to correct or
supplement any provision herein which may be inconsistent with
any other provision herein, or to make any other provisions
with respect to matters or questions arising under this
Indenture, provided that such action pursuant to this clause
shall not adversely affect the interests of the Holders of
Securities of any series in any material respect; or
(11) to make provision with respect to the
conversion rights of Holders pursuant to the requirements of
Article Twelve, including providing for the conversion of the
Securities into any security (other than the Common Stock of
the Company) or property of the Company; or
(12) to conform to any mandatory provisions of
law.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority of principal amount
of the Outstanding Securities of each
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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,
(1) change the Stated Maturity 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
(including any change in the Floating or Adjustable Rate Provision
pursuant to which such rate is determined that would reduce such rate
for any period) or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which,
any Security or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date); provided, however, that with the
consent of the Holders of not less than 75% of the Outstanding
Securities of any series affected, the Company may postpone any
interest payment in respect of such series for a period not to exceed
three years, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) if applicable, make any changes that adversely
affects the right to convert any Security to which the provisions of
Article Twelve are applicable or, except as provided in this
Indenture, decrease the conversion rate or increase the conversion
price of any such Security, or
(4) modify any of the provisions of this Section, Section
513 or Section 908, 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 and Section 908, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and
901(9), or
(5) make any change in the subordination provisions of
this Indenture that would adversely affect the Holders of the
Securities.
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
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of Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series.
It shall not be necessary for any Act of 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 903. 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 601) shall be fully protected in relying upon, in addition
to the documents required by Section 102, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture and, with respect to supplemental indentures under Section 902
hereof, evidence of the consents of Holders required in connection therewith.
The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. 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 905. Revocation and Effect of Consents. Until an
amendment or supplement under this Article or a waiver under this Article
becomes effective, a consent to it by a Holder of a Security is a continuing
consent by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security, even
if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to his Security or
portion of a Security if the Trustee receives the notice of revocation before
the date the amendment, supplement or waiver becomes effective.
After an amendment or supplement becomes effective, it shall
bind every Holder.
Section 906. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
Section 907. 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
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Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
Section 908. Waiver of Compliance by Holders. Anything in this
Indenture to the contrary notwithstanding, any of the acts which the Company is
required to do, or is prohibited from doing, by any of the provisions of this
Indenture may, to the extent that such provisions might be changed or
eliminated by a supplemental indenture pursuant to Section 902 upon consent of
Holders of not less than a majority in aggregate principal amount of the then
Outstanding Securities of the series affected, be omitted or done by the
Company, if there is obtained the prior consent or waiver of the Holders of at
least a majority in aggregate principal amount of the then Outstanding
Securities of such series.
Section 909. Subordination Unimpaired. No provision in any
supplemental indenture that affects the superior position of the holders of
Senior Debt shall be effective against holders of Senior Debt.
Section 910. Notice of Supplemental Indenture. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 902, the Company shall give notice
thereof to the Holders of each Outstanding Security affected, in the manner
provided for in Section 106, setting forth in general terms the substance of
the supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. 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 or cause to be paid the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency. So long as any
Securities are Outstanding, the Company will maintain in each Place of Payment
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 transfer or exchange, where
Securities of that series may be surrendered for conversion and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Company will give prompt written notice
to the Trustee of the location, and 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, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
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The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent 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) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such 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.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as
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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 repayment, may at the request and
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 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.
Section 1004. Statement by Officers as to Compliance. The
Company will deliver to the Trustee within 120 days after the end of each
fiscal year of the Company ending after the date hereof, a certificate signed
by the Company's principal executive officer, principal financial officer or
principal accounting officer stating to the best knowledge of the signer
thereof whether or not the Company has complied during such immediately
preceding fiscal year with and is in compliance with all terms, conditions and
covenants of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and if the signer has obtained
knowledge of any continuing default by the Company in the performance,
observation or fulfillment of any such term, condition or covenant, specifying
each such default and the nature thereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. 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 301 for Securities of any series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee. 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
reasonably satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed, the
specific provision of the Securities of such series pursuant to which such
Securities being called for redemption are being redeemed and, if applicable,
of the tenor of the Securities 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 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not
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more than 45 days prior to the Redemption Date by the Trustee, from 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 denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
If less than all of the Securities of such series and of a specified tenor are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 45 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Securities
which have been converted during a selection of Securities to be redeemed shall
be treated by the Trustee as Outstanding for the purpose of such selection.
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.
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 1104. Notice of Redemption. Notice of redemption shall
be given by first-class mail, postage prepaid, mailed not less than 15 nor more
than 60 days' prior to the Redemption Date, to each Holder of Securities to be
redeemed, at its address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount, if any,
of any accrued and unpaid interest payable on the Redemption
Date,
(3) if less than all the Outstanding Securities
of any series are to be redeemed, the identification (and, in
the case of partial redemption of any Securities, the
principal amounts) of the particular Securities to be
redeemed,
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(4) that on the Redemption Date the Redemption
Price will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) if applicable, the conversion price, and that
the date on which the right to convert the principal of the
Securities or the portions thereof to be redeemed will
terminate will be the Redemption Date and the place or places
where such Securities may be surrendered for conversion,
(6) the place or places where such Securities are
to be surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund,
if such is the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price. Prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) 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, other than any Securities called for redemption on that date
which have been converted prior to the date of such deposit.
If any Security or portion thereof called for redemption is
converted, any money deposited with the Trustee or with any Paying Agent or so
segregated and held in trust for the redemption of such Security or portion
thereof shall (subject to any right of the Holder of such Security or any
Predecessor Security to receive interest as provided in the last paragraph of
Section 307) be paid to the Company upon Company Request or, if then held by
the Company, shall be discharged from such trust.
Section 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor
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Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. Securities Redeemed in Part. Any Security which
is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder 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 and of like tenor, 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
CONVERSION OF SECURITIES
Section 1201. Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
convertible into shares of Common Stock of the Company, and the issuance of
such shares of Common Stock upon the conversion of such Securities, except as
otherwise specified as contemplated by Section 301 for the Securities of such
series.
Section 1202. Exercise of Conversion Privilege. In order to
exercise a conversion privilege, the Holder of a Security of a series with such
a privilege shall surrender such Security to the Company at the office or
agency maintained for that purpose pursuant to Section 1002, accompanied by
written notice to the Company that the Holder elects to convert such Security
or a specified portion thereof. Such notice shall also state, if different from
the name and address of such Holder, the name or names (with address) in which
the certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued. Securities surrendered for
conversion shall (if so required by the Company or the Trustee) be duly
endorsed by or accompanied by instruments of transfer in forms satisfactory to
the Company and the Trustee duly executed by the registered Holder or its
attorney duly authorized in writing; and Securities so surrendered for
conversion during the period from the close of business on any Regular Record
Date to the opening of business on the next succeeding Interest Payment Date
(excluding Securities or portions thereof called for redemption during such
period) shall also be accompanied by payment of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of such Security
then being converted, and such interest shall be payable to such registered
Holder notwithstanding the conversion of such Security, subject to the
provisions of Section 307 relating to the payment of Defaulted Interest by the
Company. As promptly as practicable after the receipt of such notice and of any
payment required pursuant to a Board Resolution and, subject to Section
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303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto
setting forth the terms of such series of Security, and the surrender of such
Security in accordance with such reasonable procedures as the Company may
prescribe, the Company shall issue and shall deliver, at the office or agency
at which such Security is surrendered, to such Holder or on its written order,
a certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such Security (or specified portion thereof),
in accordance with the provisions of such Board Resolution, Officers'
Certificate or supplemental indenture, and cash as provided therein in respect
of any fractional share of such Common Stock otherwise issuable upon such
conversion. Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which such notice and such
payment, if required, shall have been received in proper order for conversion
by the Company and such Security shall have been surrendered as aforesaid
(unless such Holder shall have so surrendered such Security and shall have
instructed the Company to effect the conversion on a particular date following
such surrender and such Holder shall be entitled to convert such Security on
such date, in which case such conversion shall be deemed to be effected
immediately prior to the close of business on such date) and at such time the
rights of the Holder of such Security as such Security Holder shall cease and
the person or persons in whose name or names any certificate or certificates
for shares of Common Stock of the Company shall be issuable upon such
conversion shall be deemed to have become the Holder or Holders of record of
the shares represented thereby. Except as set forth above and subject to the
final paragraph of Section 307, no payment or adjustment shall be made upon any
conversion on account of any interest accrued on the Securities surrendered for
conversion or on account of any dividends on the Common Stock of the Company
issued upon such conversion.
In the case of any Security which is converted in part only,
upon such conversion the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the
unconverted portion of such Security.
Section 1203. No Fractional Shares. No fractional share of
Common Stock of the Company shall be issued upon conversions of Securities of
any series. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon conversion shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof to the extent permitted
hereby) so surrendered. If, except for the provisions of this Section 1203, any
Holder of a Security or Securities would be entitled to a fractional share of
Common Stock of the Company upon the conversion of such Security or Securities,
or specified portions thereof, the Company shall pay to such Holder an amount
in cash equal to the current market value of such fractional share computed,
(i) if such Common Stock is listed or admitted to unlisted trading privileges
on a national securities exchange, on the basis of the last reported sale price
regular way on such exchange on the last trading day prior to the date of
conversion upon which such a sale shall have been effected, or (ii) if such
Common Stock is not at the time so listed or admitted to unlisted trading
privileges on a national securities exchange, on the basis of the average of
the bid and asked prices of such Common Stock in the over-the-counter
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market, on the last trading day prior to the date of conversion, as reported by
the National Quotation Bureau, Incorporated or similar organization if the
National Quotation Bureau, Incorporated is no longer reporting such
information, or if not so available, the fair market price as determined by the
Board of Directors. For purposes of this Section, "trading day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday other than any day on which the
Common Stock is not traded on the American Stock Exchange, or if the Common
Stock is not traded on the American Stock Exchange, on the principal exchange
or market on which the Common Stock is traded or quoted.
Section 1204. Adjustment of Conversion Price. The conversion
price of Securities of any series that is convertible into Common Stock of the
Company shall be adjusted for any stock dividends, stock splits,
reclassification, combinations or similar transactions in accordance with the
term of the supplemental indenture or Board Resolutions setting forth the terms
of the Securities of such series.
Whenever the conversion price is adjusted, the Company shall
compute the adjusted conversion price in accordance with terms of the
applicable Board Resolution or supplemental indenture and shall prepare an
Officers' Certificate setting forth the adjusted conversion price and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 1002 and, if
different, with the Trustee. The Company shall forthwith cause a notice setting
forth the adjusted conversion price to be mailed, first class postage prepaid,
to each Holder of Securities of such series at its address appearing on the
Security Register and to any conversion agent other than the Trustee.
Section 1205. Notice of Certain Corporate Actions. In case:
(a) the Company shall declare a dividend (or any
other distribution) on its Common Stock payable otherwise than
in cash out of its retained earnings (other than a dividend
for which approval of any stockholders of the Company is
required); or
(b) the Company shall authorize the granting to
the holders of its Common Stock of rights, options or warrants
to subscribe for or purchase any shares of capital stock of
any class or of any other rights (other than any such grant
for which approval of any stockholders of the Company is
required); or
(c) of any reclassification of the Common Stock
of the Company (other than a subdivision or combination of its
outstanding shares of Common Stock, or of any consolidation,
merger or share exchange to which the Company is a party and
for which approval of any stockholders of the Company is
required), or of the sale of all or substantially all of the
assets of the Company; or
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(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be filed with the Trustee, and shall cause to
be mailed to all Holders at their last addresses as they shall appear in the
Securities Register, at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record date hereinafter
specified, a notice stating (i) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights, options or warrants, or, if
a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution, rights, options or
warrants are to be determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or
winding up is expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, share exchange, sale,
dissolution, liquidation or winding up. If at any time the Trustee shall not be
the conversion agent, a copy of such notice shall also forthwith be filed by
the Company with the Trustee.
Section 1206. Reservation of Shares of Common Stock. The
Company shall at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, for the purpose of
effecting the conversion of Securities, the full number of shares of Common
Stock of the Company then issuable upon the conversion of all outstanding
Securities of any series that has conversion rights.
Section 1207. Payment of Certain Taxes Upon Conversion. The
Company will pay any and all taxes that may be payable in respect of the issue
or delivery of shares of its Common Stock on conversion of Securities pursuant
hereto. The Company shall not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issue and delivery of shares
of its Common Stock in a name other than that of the Holder of the Security or
Securities to be converted, and no such issue or delivery shall be made unless
and until the Person requesting such issue has paid to the Company the amount
of any such tax, or has established, to the satisfaction of the Company, that
such tax has been paid.
Section 1208. Nonassessability. The Company covenants that all
shares of its Common Stock which may be issued upon conversion of Securities
will upon issue in accordance with the terms hereof be duly and validly issued
and fully paid and nonassessable.
Section 1209. Effect of Consolidation or Merger on Conversion
Privilege. In case of any consolidation of the Company with, or merger of the
Company into or with any other Person, or in case of any sale of all or
substantially all of the assets of the Company, the Company or the Person
formed by such consolidation or the Person into which the Company shall have
been merged or the Person which shall have acquired such assets, as the case
may be, shall execute and deliver to the Trustee a supplemental indenture in
accordance with Section 801 providing that the Holder of each Security then
outstanding of any series that is convertible into Common Stock of the
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Company shall have the right, which right shall be the exclusive conversion
right thereafter available to said Holder (until the expiration of the
conversion right of such Security), to convert such Security into the kind and
amount of shares of stock or other securities or property (including cash)
receivable upon such consolidation, merger or sale by a holder of the number of
shares of Common Stock of the Company into which such Security might have been
converted immediately prior to such consolidation, merger or sale, subject to
compliance with the other provisions of this Indenture, such Security and such
supplemental indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in such Security. The above provisions of this Section
shall similarly apply to successive consolidations, mergers or sales. It is
expressly agreed and understood that anything in this Indenture to the contrary
notwithstanding, if, pursuant to such merger, consolidation or sale, holders of
outstanding shares of Common Stock of the Company do not receive shares of
common stock of the surviving corporation but receive other securities, cash or
other property or any combination thereof, Holders of Securities shall not have
the right to thereafter convert their Securities into common stock of the
surviving corporation or the corporation which shall have acquired such assets,
but rather, shall have the right upon such conversion to receive the other
securities, cash or other property receivable by a holder of the number of
shares of Common Stock of the Company into which the Securities held by such
holder might have been converted immediately prior to such consolidation,
merger or sale, all as more fully provided in the first sentence of this
Section 1209. Anything in this Section 1209 to the contrary notwithstanding,
the provisions of this Section 1209 shall not apply to a merger or
consolidation of another corporation with or into the Company pursuant to which
both of the following conditions are applicable: (i) the Company is the
surviving corporation and (ii) the outstanding shares of Common Stock of the
Company are not changed or converted into any other securities or property
(including cash) or changed in number or character or reclassified pursuant to
the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly be
convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate or
opinion of an independent certified public accountant with respect thereto;
and, in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or accountable to any
Holder of Securities for any provision in conformity therewith or approved by
such independent certified accountant which may be contained in said
supplemental indenture.
Section 1210. Duties of Trustee Regarding Conversion. Neither
the Trustee nor any conversion agent shall at any time be under any duty or
responsibility to any Holder of Securities of any series that is convertible
into Common Stock of the Company to determine whether any facts exist which may
require any adjustment of the conversion price, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed, whether herein or in any supplemental indenture, any resolutions of
the Board of Directors or written instrument executed by one or more officers
of the Company provided to be employed in making the same. Neither the Trustee
nor any conversion agent shall be accountable with respect to the validity or
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value (or the kind or amount) of any shares of Common Stock of the Company, or
of any securities or property, which may at any time be issued or delivered
upon the conversion of any Securities and neither the Trustee nor any
conversion agent makes any representation with respect thereto. Subject to the
provisions of Section 601, neither the Trustee nor any conversion agent shall
be responsible for any failure of the Company to issue, transfer or deliver any
shares of its Common Stock or stock certificates or other securities or
property upon the surrender of any Security for the purpose of conversion or to
comply with any of the covenants of the Company contained in this Article
Twelve or in the applicable supplemental indenture, resolutions of the Board of
Directors or written instrument executed by one or more duly authorized
officers of the Company.
Section 1211. Repayment of Certain Funds Upon Conversion. Any
funds which at any time shall have been deposited by the Company or on its
behalf with the Trustee or any other paying agent for the purpose of paying the
principal of, and premium, if any, and interest, if any, on any of the
Securities (including funds deposited for the sinking fund referred to in
Article Three hereof) and which shall not be required for such purposes because
of the conversion of such Securities as provided in this Article Twelve shall
after such conversion be repaid to the Company by the Trustee upon the
Company's written request by Company Request.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance. The Company may elect, at any time, to have either Section
1302 or Section 1303 applied to the Outstanding Securities of any series, upon
compliance with the conditions set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge. Upon the Company's
exercise of the option provided in Section 1301 to have this Section 1302
applied to the Outstanding Securities of any series, the Company shall be
deemed to have been discharged from its obligations, and the provisions of
Article Fifteen shall cease to be effective, with respect to the Outstanding
Securities of such series as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
the Outstanding Securities of such series and to have satisfied all its other
obligations under the Securities of such series and this Indenture insofar as
the Securities of such series are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), subject
to the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of Securities of such series to receive,
solely from the trust fund described in Section 1304 and as more fully set
forth in such Section, payments in respect of the principal of and any premium
and interest on such Securities of such series when payments are due, (2) the
Company's obligations with respect to the Securities of such series under
Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder,
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including, without limitation, its rights under Section 607 and (4) this
Article Thirteen. Subject to compliance with this Article Thirteen, the Company
may exercise its option provided in Section 1301 to have this Section 1302
applied to the Outstanding Securities of any series notwithstanding the prior
exercise of its option provided in Section 1301 to have Section 1303 applied to
the Outstanding Securities of such series.
Section 1303. Covenant Defeasance. Upon the Company's exercise
of the option provided in Section 1301 to have this Section 1303 applied to the
Outstanding Securities of any series, (1) the Company shall be released from
its obligations under Section 801 and (2) the occurrence of any event specified
in Sections 501(3), 501(4) (with respect to Section 801) and 501(5) shall be
deemed not to be or result in an Event of Default, and (3) the provisions of
Article Fifteen shall cease to be effective, in each case with respect to the
Outstanding Securities of such series as provided in this Section on and after
the date the conditions set forth in Section 1304 are satisfied (hereinafter
called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means
that the Company may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such specified Section
(to the extent so specified in the case of Section 501(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any other provision herein or
in any other document, but the remainder of this Indenture and the Securities
of such series shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 1302 or
Section 1303 to the Outstanding Securities of any series:
(1) The Company shall elect by Board Resolution
to effect a Defeasance pursuant to Section 1302 or a Covenant
Defeasance pursuant to Section 1303 with respect to the
Outstanding Securities of any series specified in such Board
Resolution (the "Defeasible Series").
(2) The Company shall irrevocably have deposited
or caused to be deposited with the Trustee (or another trustee
that satisfies the requirements contemplated by Section 609
and agrees to comply with the provisions of this Article
Thirteen applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the
Holders of Outstanding Securities of such series, (i) money in
an amount, or (ii) U.S. Government Obligations that through
the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an
amount, or (iii) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any
such other qualifying trustee) to pay and discharge,
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the principal of and any premium and interest on the
Securities of such series on the respective Stated Maturities,
in accordance with the terms of this Indenture and the
Securities of such series. As used herein, "U.S. Government
Obligation" means (x) any security that is (i) a direct
obligation of the United States of America for the payment of
which full faith and credit of the United States of America is
pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality for
the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option
of the issuer thereof, and (y) any depositary receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act
of 1933, as amended) as custodian with respect to any specific
payment of principal of or interest on any such U.S.
Government Obligation specified in Clause (x) and held by such
custodian for the account of the holder of such depositary
receipt, or with respect to any specific payment of principal
of or interest on any such U.S. Government Obligation,
provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable
to the Holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
(3) In the case of an election under Section
1302, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Company has received
from, or there has been published by, the Internal Revenue
Service, a ruling or (ii) since the date hereof, there has
been a change in the applicable Federal income tax law, in
case of either (i) or (ii) to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income
tax purposes as a result of such deposit and Defeasance and
discharge to be effected with respect to the Securities of
such series and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would
be the case if such deposit, Defeasance and discharge were not
to occur.
(4) In the case of an election under Section
1303, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holder of the
Outstanding Securities of such series will not recognize gain
or loss for Federal income tax purposes as result of the
deposit and Covenant Defeasance to be effected with respect to
the Securities of such series and will be subject to Federal
income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(5) The Company shall have delivered to the
Trustee an Officers' Certificate to the effect that the
Securities of such series, if then listed on any securities
exchange, will not be delisted as a result of such deposit.
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(6) No Event of Default or event that (after
notice or lapse of time or both) would become an Event of
Default shall have occurred and be continuing at the time of
such deposit or, with regard to any Event of Default or any
such event specified in Sections 501(6) and 501(7), at any
time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be
deemed satisfied until after such 90th day).
(7) The Company shall have delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that all conditions precedent with respect to
such Defeasance or Covenant Defeasance have been complied
with.
(8) Such Defeasance or Covenant Defeasance shall
not result in the trust arising from such deposit constituting
an investment company within the meaning of the Investment
Company Act of 1940, as amended, unless such trust shall be
qualified under such Act or exempt from regulation thereunder.
(9) At the time of such deposit: (A) no default
in the payment of principal of (or premium, if any) or
interest on any Senior Debt shall have occurred and be
continuing or (B) no other event of default with respect to
any Senior Debt shall have occurred and be continuing and
shall have resulted in such Senior Debt becoming or being
declared due and payable prior to the date on which it would
otherwise have become due and payable, or, in the case of
either Clause (A) or Clause (B) above, each such default or
event of default shall have been cured or waived or shall have
ceased to exist.
Section 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions
of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or
other qualifying trustee (solely for purposes of this Section and Section 1306,
the Trustee and any such other trustee are referred to collectively as the
"Trustee") pursuant to Section 1304 in respect of the Securities of any
Defeasible Series shall be held in trust and applied by the Trustee, in
accordance with the provisions of the Securities of such series and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law. Money so held in trust shall not be subject to the
provisions of Article Fifteen.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge that
by law is for the account of the Holders of Outstanding Securities.
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Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it
as provided in Section 1304 with respect to Securities of any Defeasible Series
that, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Defeasance or Covenant Defeasance with
respect to the Securities of such series.
Section 1306. Reinstatement. If the Trustee or the Paying
Agent is unable to apply any money in accordance with this Article Thirteen
with respect to the Securities of any series by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Securities of such series shall be revived and reinstated as
though no deposit had occurred pursuant to this Article Thirteen with respect
to Securities of such series until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with
respect to Securities of such series in accordance with this Article Thirteen;
provided, however, that if the Company makes any payment of principal of or any
premium or interest on any Security of such series following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the
Holders of Securities of such series to receive such payment from the money so
held in trust.
ARTICLE FOURTEEN
SINKING FUNDS
Section 1401. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment." If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1211. 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 1402. Satisfaction of Sinking Fund Payments with
Securities. The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been converted pursuant to Article Twelve or
Securities of a series which have been acquired or 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 or otherwise, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of such
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series required to be made pursuant to the terms of such Securities as provided
for by the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee 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 1403. 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 shall 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 that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 nor more than 60 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 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 1104 and provide a copy
thereof to the Company five (5) days in advance of the mailing thereof. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
Section 1501. Securities Subordinate to Senior Debt. Except as
otherwise specified pursuant to Section 301 for Securities of any series, the
Company covenants and agrees, and each Holder of a Security, by its acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article (subject to the provisions of Article
Four and Article Thirteen), the payment of the principal of (and premium, if
any) and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
amounts then due and payable in respect of all Senior Debt.
Section 1502. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, arrangement, reorganization, debt restructuring or
other similar case or proceeding in connection with any insolvency or
bankruptcy proceeding, relative to the Company or to its assets, or (b) any
liquidation, dissolution or other winding up of the Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (c)
any assignment for the benefit of creditors or any other marshaling of assets
and liabilities of the Company, then and in any such event specified in (a),
(b) or (c) above (each such event, if any, herein sometimes referred to as a
"Proceeding") the holders of Senior Debt shall be entitled to receive payment
in full of all amounts due or to become due on or in respect of all Senior
Debt, or provision shall be made for such payment in cash or cash equivalents
or otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders
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of the Securities are entitled to receive any payment or distribution of any
kind or character, whether in cash, property or securities (including any
payment or distribution which may be payable or deliverable by reason of the
payment of any other Debt of the Company subordinated to the payment of the
Securities, such payment or distribution being hereinafter referred to as
"Junior Subordinated Payment"), on account of principal of (or premium, if any)
or interest on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary and to that end the
holders of Senior Debt shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or character, whether
in cash, property or securities, including any Junior Subordinated Payment,
which may be payable or deliverable in respect of the Securities in any such
Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment or distribution shall
be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt. Any taxes that have been withheld or deducted from
any payment or distribution in respect of the Securities, or any taxes that
ought to have been withheld or deducted from any such payment or distribution
that have been remitted to the relevant taxing authority, shall not be
considered to be an amount that the Trustee or the Holder of any Security
receives for purposes of this Section.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment which securities are subordinated
in right of payment to all then outstanding Senior Debt to substantially the
same extent as the Securities are so subordinated as provided in this Article.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
sale of all or substantially all of its properties and assets as an entirety to
another Person or the liquidation or dissolution of the Company following the
sale of all or substantially all of its properties and assets as an entirety to
another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a Proceeding for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by sale such properties and assets as an entirety, as the case
may be, shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article Eight.
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Xxxxxxx 0000. Prior Payment to Senior Debt Upon Acceleration
of Securities. In the event that any Securities are declared due and payable
before their Stated Maturity, then and in such event the holders of the Senior
Debt outstanding at the time such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt, or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Debt, before the Holders of the Securities are entitled to receive any payment
(including any payment which may be payable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of the
Securities) by the Company on account of the principal of (or premium, if any)
or interest on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary; provided, however,
that nothing in this Section shall prevent the satisfaction of any sinking fund
payment in accordance with Article Fourteen by delivering and crediting
pursuant to Section 1402 Securities which have been acquired (upon redemption
or otherwise) prior to such declaration of acceleration or which have been
converted pursuant to Article Twelve.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section, and if such fact shall, at or
prior to the time of such payment, have been made known to the Trustee or, as
the case may be, such Holder, then and in such event such payment shall be paid
over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 1502 would be applicable.
Section 1504. No Payment When Senior Debt in Default. (a) In
the event and during the continuation of any default in the payment of
principal of (or premium, if any) or interest on any Senior Debt, or in the
event that any event of default with respect to any Senior Debt shall have
occurred and be continuing and shall have resulted in such Senior Debt becoming
or being declared due and payable prior to the date on which it would otherwise
have become due and payable, unless and until such event of default shall have
been cured or waived or shall have ceased to exist and such acceleration shall
have been rescinded or annulled, or (b) in the event any judicial proceeding
shall be pending with respect to any such default in payment or such event of
default, then no payment (including any payment which may be payable by reason
of the payment of any other indebtedness of the Company being subordinated to
the payment of the Securities) shall be made by the Company on account of
principal of (or premium, if any) or interest on the Securities or on account
of the purchase or other acquisition of Securities by the Company or any
Subsidiary; provided, however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article Fourteen by
delivering and crediting pursuant to Section 1402 Securities which have been
acquired (upon redemption or otherwise) prior to such default in payment or
event of default or which have been converted pursuant to Article Twelve.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this
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Section, and if such fact shall, at or prior to the time of such payment, have
been made known to the Trustee or, as the case may be, such Holder, then and in
such event such payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 1502 would be applicable.
Section 1505. Payment Permitted If No Default. Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Securities shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 1502 or under the conditions
described in Sections 1503 and 1504, from making payments at any time of
principal of (and premium, if any) or interest on the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of (and premium, if any) or interest
on the Securities or the retention of such payment by the Holders, if, at the
time of such application by the Trustee, it did not have knowledge that such
payment would have been prohibited by the provisions of this Article.
Section 1506. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt, or the provision for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt, the Holders of the Securities shall be subrogated
to the extent of the payments or distributions made to the holders of such
Senior Debt pursuant to the provisions of this Article (equally and ratably
with the holders of all indebtedness of the Company which by its express terms
is subordinated to indebtedness of the Company to substantially the same extent
as the Securities are subordinated to the Senior Debt and is entitled to like
rights of subrogation by reason of any payments or distributions made to
holders of such Senior Debt) to the rights of the holders of such Senior Debt
to receive payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of (and premium, if any) and
interest on the Securities shall be paid in full. If the Trustee or the Holders
of the Securities are not for any reason entitled to be subrogated to the
rights of holders of Senior Debt in respect of such payment or distribution,
then the Trustee or the Holders of the Securities may require each holder of
Senior Debt to whom any such payment or distribution is made as a condition to
such payment or distribution to assign its Senior Debt to the extent of such
payment or distribution and all rights with respect thereto to the Trustee on
behalf of the Holders. Such assignment shall not be effective until such time
as all Senior Debt has been paid in full or payment thereof provided for. For
purposes of such subrogation or assignment, no payments or distributions to the
holders of the Senior Debt of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Debt by Holders of the Securities or the
Trustee, shall, as among the Company, its creditors other than holders of
Senior Debt, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Debt.
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Section 1507. Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as among the Company, its creditors other than holders of
Senior Debt, and the Holders of the Securities, the obligations of the Company,
which are absolute and unconditional (and which, subject to the rights under
this Article of the holders of Senior Debt, are intended to rank equally with
all other general unsecured obligations of the Company), to pay to the Holders
of the Securities the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders
of Senior Debt; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture including, without limitation, filing and voting claims in
any Proceeding, subject to the rights, if any, under this Article of the
holders of Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
Section 1508. Trustee to Effectuate Subordination. Each Holder
of a Security by his or her acceptance thereof authorizes and directs the
Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
Section 1509. No Waiver of Subordination Provisions. No right
of any present or future holder of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities,
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter or
increase, Senior Debt, or otherwise amend or supplement in any manner Senior
Debt or any instrument evidencing the same or any agreement under which Senior
Debt is outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (iii) release
any Person liable in any manner for the collection of Senior Debt; and (iv)
exercise or refrain from exercising any rights against the Company and any
other Person.
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Section 1510. Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Debt or from any trustee, agent or representative therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 601, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the
notice provided for in this Section at least two Business Days prior to the
date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (and
premium, if any) or interest on any Security), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it within two Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself or herself to be a holder of Senior Debt (or a trustee,
agent or representative therefor) to establish that such notice has been given
by a holder of Senior Debt (or a trustee, agent or representative therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
Section 1511. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Section
601, and the Holders of the Securities shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or
to the Holders of Securities, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Senior Debt 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.
Section 1512. Trustee Not Fiduciary For Holders of Senior
Debt. The Trustee, in its capacity as trustee under this Indenture, shall not
be deemed to owe any fiduciary duty to the holders of Senior Debt and shall not
be liable to any such holders if it shall in good faith mistakenly pay over
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or distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise.
Section 1513. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Debt which may at any time be held by it, to the same extent as any
other holder of Senior Debt, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 607.
Section 1514. Article Applicable to Paying Agents. In case at
any time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
Section 1515. Defeasance of This Article Fifteen. The
subordination of the Securities provided by this Article Fifteen is expressly
made subject to the provisions for defeasance or covenant defeasance in Article
Thirteen and, anything herein to the contrary notwithstanding, upon the
effectiveness of any such defeasance or covenant defeasance, the Securities
then outstanding shall thereupon cease to be subordinated pursuant to this
Article Fifteen.
Section 1516. Certain Conversions Deemed Payment. For the
purposes of this Article only, (1) the issuance and delivery of junior
securities upon conversion of Securities in accordance with Article Twelve
shall not be deemed to constitute a payment or distribution on account of the
principal of (or premium, if any) or interest on Securities or on account of
the purchase or other acquisition of Securities, and (2) the payment, issuance
or delivery of cash, property or securities (other than junior securities) upon
conversion of a Security shall be deemed to constitute payment on account of
the principal of such security. For the purposes of this Section, the term
"junior securities" means (a) shares of any stock of any class of the Company
and (b) securities of the Company which are subordinated in right of payment to
all Senior Debt which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall impair, as among the Company, its creditors other than
holders of Senior Debt and the Holders of the Securities, the right, which is
absolute and unconditional, of the Holder of any Security to convert such
Security in accordance with Article Twelve.
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ARTICLE SIXTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1601. Applicability of Article.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
SECTION 1602. Repayment of Securities.
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise provided in
the terms of such Securities, be repaid at a price equal to the principal
amount thereof, together with interest, if any, thereon accrued to the
Repayment Date specified in or pursuant to the terms of such Securities. The
Company covenants that on or before the Repayment Date it will deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay the principal (or, if so provided by the terms
of the Securities of any series, a percentage of the principal) of, premium, if
any, and (except if the Repayment Date shall be an Interest Payment Date)
accrued interest on, all the Securities or portions thereof, as the case may
be, to be repaid on such date.
SECTION 1603. Exercise of Option.
Securities of any series subject to repayment at the option of
the Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect Repayment"
form on the reverse of such Security duly completed by the Holder (or by the
Holder's attorney duly authorized in writing), must be received by the Company
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places or which the Company shall from time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any
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Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1604. When Securities Presented for Repayment Become Due and Payable.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest.
Upon surrender of any such Security for repayment in accordance with such
provisions, the principal amount of such Security so to be repaid shall be paid
by the Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that installments of interest, if any, whose Stated Maturity
is on or prior to the Repayment 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 Dates according to their terms and the
provisions of Section 307.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1605. Securities Repaid in Part.
Upon surrender of any Security which is to be repaid in part
only, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such security, without service charge and at the expense of
the Company, a new Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so
surrendered which is not to be repaid.
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.
XXXXXX INDUSTRIES, INC.
By
--------------------------------------
Attest:
----------------------------------------,
as Trustee
By
--------------------------------------
Attest:
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00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ____________________________, before me
personally came ____________________, to me known, who, being by me duly sworn,
did depose and say that (s)he is __________________ of XXXXXX INDUSTRIES, INC.,
one of the corporations described in and which executed the foregoing
instrument; that (s)he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that (s)he signed
her/his name thereto by like authority.
- 00 -
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the day of ______________, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that (s)he is __________________ of _____________________, one of the
corporations described in and which executed the foregoing instrument; that
(s)he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that (s)he signed her/his name
thereto by like authority.
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