EXHIBIT 4.3
XXXX FOODS COMPANY
AND
________________________,
Trustee
Subordinated Debt Securities
INDENTURE
Dated as of January 15, 1998
TABLE OF CONTENTS
Page
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PARTIES...................................................................... 1
RECITALS..................................................................... 1
ARTICLE I
DEFINITIONS.................................................................. 1
SECTION 1.1 Certain Terms Defined......................................... 1
Additional Rights.......................................................... 1
Additional Rights Agreement................................................ 1
Authorized Newspaper....................................................... 2
Bankruptcy Code............................................................ 2
Board of Directors......................................................... 2
Business Day............................................................... 2
Commission................................................................. 2
Common Stock............................................................... 2
Company.................................................................... 2
Company Notice............................................................. 2
Conversion Agent........................................................... 2
Conversion Price........................................................... 2
Corporate Trust Office..................................................... 2
Coupon..................................................................... 3
Date of Conversion......................................................... 3
defaulted interest......................................................... 3
defeasance................................................................. 3
Depositary................................................................. 3
Depositary Security........................................................ 3
Dollar..................................................................... 3
ECU........................................................................ 3
Event of Default........................................................... 3
Foreign Currency........................................................... 3
Government Obligations..................................................... 3
Holder..................................................................... 4
Holder of Securities....................................................... 4
Registered Holder.......................................................... 4
Securityholder............................................................. 4
Indenture.................................................................. 4
Last Sale Price............................................................ 4
Market Exchange Rate....................................................... 4
Maturity................................................................... 4
Officers' Certificate...................................................... 4
Opinion of Counsel......................................................... 4
original issue date........................................................ 4
Original Issue Discount Security........................................... 4
Outstanding................................................................ 4
Paying Agent............................................................... 5
Person..................................................................... 5
persons.................................................................... 5
Place of Payment........................................................... 5
principal.................................................................. 5
record date................................................................ 5
Registered Global Security................................................. 5
Registered Security........................................................ 6
Responsible Officer........................................................ 6
Rights..................................................................... 6
Rights Agreement........................................................... 6
Security................................................................... 6
Securities................................................................. 6
Security Register.......................................................... 6
Senior Indebtedness........................................................ 6
Series..................................................................... 6
Series of Securities....................................................... 6
Stated Maturity............................................................ 6
Trading Day................................................................ 6
Trust Indenture Act........................................................ 6
TIA........................................................................ 6
Trustee.................................................................... 6
United States of America................................................... 7
Unregistered Security...................................................... 7
U.S. Person................................................................ 7
vice president............................................................. 7
ARTICLE II
SECURITIES................................................................... 7
SECTION 2.1 Forms Generally............................................. 7
SECTION 2.2 Form of Trustee's Certificate of Authentication............. 7
SECTION 2.3 Amount Unlimited; Issuable in Series........................ 8
SECTION 2.4 Authentication and Delivery of Securities...................11
SECTION 2.5 Execution of Securities.....................................12
SECTION 2.6 Certificate of Authentication...............................13
SECTION 2.7 Denomination and Date of Securities; Payments of Interest...13
SECTION 2.8 Registration, Transfer and Exchange.........................15
SECTION 2.9 Xxxxxxxxx, Defaced, Destroyed, Lost and Stolen Securities...18
SECTION 2.10 Cancellation of Securities; Destruction Thereof.............19
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SECTION 2.11 Temporary Securities.........................................19
ARTICLE III
COVENANTS OF THE COMPANY.....................................................20
SECTION 3.1 Payment of Principal and Interest...........................20
SECTION 3.2 Offices for Payment, etc....................................21
SECTION 3.3 Paying Agents...............................................21
SECTION 3.4 Written Statement to Trustee................................22
SECTION 3.5 Luxembourg Publications.....................................23
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE.............................................23
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders................................23
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists.......23
SECTION 4.3 Reports by the Company......................................24
ARTICLE V
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT........................................25
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver
of Default..................................................25
SECTION 5.2 Collection of Indebtedness By Trustee; Trustee May Prove
Debt........................................................27
SECTION 5.3 Application of Proceeds.....................................29
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings.........30
SECTION 5.5 Limitations on Suits by Securityholders.....................30
SECTION 5.6 Unconditional Right of Securityholders to Institute Certain
Suits.......................................................31
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default..................................................31
SECTION 5.8 Control by Securityholders..................................31
SECTION 5.9 Waiver of Past Defaults.....................................32
SECTION 5.10 Right of Court to Require Filing of Undertaking to Pay
Costs.......................................................32
SECTION 5.11 Suits for Enforcement.......................................32
ARTICLE VI
CONCERNING THE TRUSTEE.......................................................33
SECTION 6.1 Duties of Trustee...........................................33
SECTION 6.2 Rights of Trustee...........................................34
SECTION 6.3 Individual Rights of Trustee................................34
SECTION 6.4 Trustee's Disclaimer........................................35
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SECTION 6.5 Notice of Defaults..........................................35
SECTION 6.6 Reports by Trustee to Holders...............................35
SECTION 6.7 Compensation and Indemnity..................................35
SECTION 6.8 Replacement of Trustee......................................36
SECTION 6.9 Successor Trustee by Merger.................................37
SECTION 6.10 Eligibility; Disqualification...............................37
SECTION 6.11 Preferential Collection of Claims Against Company...........37
ARTICLE VII
CONCERNING THE SECURITYHOLDERS...............................................37
SECTION 7.1 Evidence of Action Taken by Securityholders.................37
SECTION 7.2 Proof of Execution of Instruments...........................38
SECTION 7.3 Holders to Be Treated as Owners.............................38
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding..........38
SECTION 7.5 Right of Revocation of Action Taken.........................38
ARTICLE VIII
SUPPLEMENTAL INDENTURES......................................................39
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders..39
SECTION 8.2 Supplemental Indentures With Consent of Securityholders.....40
SECTION 8.3 Effect of Supplemental Indenture............................41
SECTION 8.4 Documents to Be Given to Trustee............................42
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures..................................................42
SECTION 8.6 Subordination Unimpaired....................................42
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE....................................42
SECTION 9.1 Company May Consolidate, etc., on Certain Terms.............42
SECTION 9.2 Successor Corporation Substituted...........................42
SECTION 9.3 Opinion of Counsel to Trustee...............................43
ARTICLE X
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS.............................................43
SECTION 10.1 Satisfaction and Discharge of Indenture.....................43
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities..................................................46
SECTION 10.3 Repayment of Moneys Held by Paying Agent....................46
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying Agent.46
SECTION 10.5 Reinstatement of Company's Obligations......................47
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ARTICLE XI
MISCELLANEOUS PROVISIONS.....................................................47
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability....................47
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders.............................................48
SECTION 11.3 Successors and Assigns of Company Bound by Indenture........48
SECTION 11.4 Notices and Demands on Company, Trustee and Securityholders.48
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein.....................................49
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays.............50
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act.........................................................50
SECTION 11.8 New York Law to Govern......................................50
SECTION 11.9 Counterparts................................................50
SECTION 11.10 Effect of Headings; Gender..................................50
SECTION 11.11 Securities in a Foreign Currency or in ECU..................50
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS...................................51
SECTION 12.1 Applicability of Article....................................51
SECTION 12.2 Election to Redeem; Notice of Redemption; Partial
Redemptions.................................................51
SECTION 12.3 Payment of Securities Called for Redemption.................53
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption....................................53
SECTION 12.5 Mandatory and Optional Sinking Funds........................54
SECTION 12.6 Repayment at the Option of the Holders......................56
ARTICLE XIII
SUBORDINATION................................................................56
SECTION 13.1 Securities Subordinated to Senior Indebtedness..............56
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness.............58
SECTION 13.3 Payment Permitted If No Default.............................59
SECTION 13.4 Trustee Not Charged with Knowledge of Prohibition...........59
SECTION 13.5 Trustee to Effectuate Subordination.........................60
SECTION 13.6 Rights of Trustee as Holder of Senior Indebtedness..........60
SECTION 13.7 Article Applicable to Paying Agents.........................60
SECTION 13.8 Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness...............60
SECTION 13.9 Trustee Not Fiduciary for Holders of Senior Indebtedness....60
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ARTICLE XIV
CONVERSION OF SECURITIES.....................................................61
SECTION 14.1 Applicability of Article....................................61
SECTION 14.2 Exercise of Conversion Privilege............................61
SECTION 14.3 Fractional Interests........................................62
SECTION 14.4 Adjustment of Conversion Price..............................62
SECTION 14.5 Continuation of Conversion Privilege in Case of Merger,
Consolidation or Sale of Assets.............................65
SECTION 14.6 Notice of Certain Events....................................66
SECTION 14.7 Taxes on Conversion.........................................67
SECTION 14.8 Company to Provide Stock....................................67
SECTION 14.9 Disclaimer of Responsibility for Certain Matters............67
SECTION 14.10 Return of Funds Deposited for Redemption of Converted
Securities..................................................68
SECTION 14.11 Rights Issued in Respect of Common Stock Issued Upon
Conversion..................................................68
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XXXX FOODS COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of January 15, 1998
Trust Indenture Act Section Indenture Section
(S)310 (a) (1)..............................................6.10
(a) (2)..............................................6.10
(a) (3)..............................................Not Applicable
(a) (4)..............................................Not Applicable
(a) (5)..............................................6.10
(b)..................................................6.8, 6.10
(S)311 (a)..................................................6.11
(b)..................................................6.11
(S)312 (a)..................................................4.1 and 4.2
(b)..................................................4.2
(c)..................................................4.2
(S)313 (a) (1) - (5) & (7) - (8)............................6.6
(a) (6)..............................................Not Applicable
(b) (1)..............................................Not Applicable
(b) (2)..............................................6.6
(c)..................................................6.6
(d)..................................................6.6
(S)314 (a) (1) - (3)........................................4.3
(a) (4)..............................................3.4
(b)..................................................Not Applicable
(c) (1)..............................................11.5
(c) (2)..............................................11.5
(c) (3)..............................................Not Applicable
(d)..................................................Not Applicable
(e)..................................................11.5
(f)..................................................Not Applicable
(S)315 (a)..................................................6.1
(b)..................................................6.5
(c)..................................................6.1
(d)..................................................6.1
(d) (1)..............................................6.1
(d) (2)..............................................6.1
(d) (3)..............................................6.1
(e)..................................................5.10
(S)316 (a)..................................................7.4
(a) (1) (A)..........................................5.8
(a) (1) (B)..........................................5.1, 5.9
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(a) (2)..............................................Not Applicable
(b)..................................................5.6
(c)..................................................7.1
(S)317 (a) (1)..............................................5.2
(a) (2)..............................................5.2
(b)..................................................3.3
(S)318 (a)..................................................11.7
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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THIS INDENTURE, dated as of January 15, 1998 between XXXX FOODS COMPANY, a
Delaware corporation (the "Company"), and ___________________, a
_______________________ (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issuance from time to
time of its unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued in one or more Series; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the Holders thereof, it is mutually agreed for the equal and proportionate
benefit of the respective Holders from time to time of the Securities or of any
Series thereof as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939, as
amended, or the definitions of which in the Securities Act of 1933, as amended,
are referred to in the Trust Indenture Act of 1939, as amended, including terms
defined therein by reference to the Securities Act of 1933, as amended (except
as herein otherwise expressly provided or unless the context otherwise clearly
requires), shall have the meanings assigned to such terms in the Trust Indenture
Act of 1939, as amended, and in the Securities Act of 1933, as amended, as in
force at the date of this Indenture. All accounting terms used herein and not
expressly defined shall have the meanings assigned to such terms in accordance
with generally accepted accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as are generally
accepted at the time of any computation. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole, as supplemented and amended from time to time, and not to any particular
Article, Section or other subdivision. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as well as
the singular.
"Additional Rights" has the meaning specified in Section 14.11.
"Additional Rights Agreement" has the meaning specified in Section
14.11.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition), in the case of the United Kingdom, will, if practicable, be the
Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable be the Luxembourger Wort) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, the United Kingdom or in Luxembourg, as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in
lieu thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United
States Code (S)(S)101 et seq., or any successor statute thereto.
"Board of Directors" means either the Board of Directors of the
Company or any duly authorized committee of that Board.
"Business Day" means, except as may otherwise be provided in the form
of Securities of any particular Series, with respect to any Place of Payment or
place of publication, any day, other than a Saturday or Sunday, or a day on
which banking institutions are authorized or required by law or regulation to
close in that Place of Payment or place of publication.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
"Common Stock" means the common stock, $1.00 par value per share, of
the Company.
"Company" means Xxxx Foods Company, a Delaware corporation, until a
successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean such successor
corporation.
"Company Notice" means the confirmation of the Company signed by an
officer, transmitted to the Trustee of the terms of the issuance of any
Securities.
"Conversion Agent" has the meaning specified in Section 3.2.
"Conversion Price" has the meaning specified in Section 14.4.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee at which at any particular time its corporate trust business
shall be administered, which office at the
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date of execution of this Indenture is located at ___________________________
____________________.
"Coupon" means any interest coupon appertaining to a Security.
"Date of Conversion" has the meaning specified in Section 14.2.
"defaulted interest" has the meaning specified in Section 2.7.
"defeasance" has the meaning specified in Section 10.1(B)(ii).
"Depositary" means, with respect to the Securities of any Series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Company pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such person, "Depositary" as used with respect to the Securities of any
such Series shall mean the Depositary with respect to the Registered Global
Securities of that Series.
"Depositary Security" means, with respect to any Series of
Securities, a Security executed by the Company and authenticated and delivered
by the Trustee to the Depositary or pursuant to the Depositary's instruction,
all in accordance with this Indenture and pursuant to a resolution of the Board
of Directors as contemplated by Section 2.3, which (i) shall be registered as to
principal and interest in the name of the Depositary or its nominee and (ii)
shall represent Outstanding Securities of such Series.
"Dollar" means the coin or currency of the United States of America
which as of the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of European Communities.
"Event of Default" has the meaning specified in Section 5.1.
"Foreign Currency" means a currency issued by the government of a
country other than the United States.
"Government Obligations" means, unless otherwise specified pursuant
to Section 2.3, securities which are (i) direct obligations of the government
which issued the currency in which the Securities of such Series are denominated
for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by, or acting as an agency or
instrumentality of, the United States government, the payment of which
obligations is unconditionally guaranteed by such government, and which, in
either case, are full faith and credit obligations of such government, and which
are not callable or redeemable at the option of the issuer thereof prior to
their stated maturity.
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"Holder", "Holder of Securities", "Registered Holder",
"Securityholder" or other similar terms mean (a) in the case of any Registered
Security, the person in whose name such Security is registered in the Security
Register, and (b) in the case of any Unregistered Security, the bearer of such
Security, or any Coupon appertaining thereto, as the case may be.
"Indenture" means this instrument as originally executed and
delivered or as it may from time to time be amended or supplemented as herein
provided, as so amended or supplemented or both, and shall include the forms and
terms of particular Series of Securities established as contemplated by Section
2.3.
"Last Sale Price" has the meaning specified in Section 14.3.
"Market Exchange Rate" has the meaning specified in Section 11.11.
"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 Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed on behalf of the
Company by the chairman of the Board of Directors or the vice chairman or the
president or any vice president and by the treasurer, the controller, any
assistant treasurer, the secretary or any assistant secretary of the Company and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 11.5.
"Opinion of Counsel" means a written opinion of legal counsel, who
may be an employee of or counsel to the Company, and who shall be reasonably
acceptable to the Trustee. Each Opinion of Counsel shall include the statements
provided for in Section 11.5, if and to the extent required hereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that 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 5.1.
"Outstanding" when used with reference to Securities, subject to the
provisions of Section 7.4, means, as of any particular time, all Securities
authenticated and delivered under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
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(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount and in the required currency shall
have been deposited in trust with the Trustee or with any Paying Agent
(other than the Company) or shall have been set aside, segregated and held
in trust by the Company for the Holders of such Securities (if the Company
shall act as its own Paying Agent), provided that if such Securities, or
portions thereof, are to be redeemed prior to the Maturity thereof, notice
of such redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such notice;
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee and the Company is presented that
such Security is held by a person in whose hands such Security is a legal,
valid and binding obligation of the Company); and
(d) Securities as to which defeasance has been effected pursuant to
Section 10.1(B).
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.1.
"Paying Agent" means any Person (which may include the Company)
authorized by the Company to pay the principal of or interest, if any, on any
Security on behalf of the Company.
"Person" or "persons" means any individual, corporation,
partnership, joint venture, limited liability company, association, joint stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
Series, means the place or places where the principal of and interest, if any,
on the Securities of that Series are payable as specified pursuant to Section
3.2.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any."
"record date" has the meaning specified in Section 2.7.
"Registered Global Security" means a Security evidencing all or a
part of a Series of Registered Securities, issued to the Depositary for such
Series in accordance with Section 2.4, and bearing the legend prescribed in
Section 2.4.
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"Registered Security" means any Security which is registered in the
Security Register.
"Responsible Officer" when used with respect to the Trustee means any
officer within the corporate trust department (or any successor department) of
the Trustee including any vice president, assistant vice president, assistant
secretary, senior trust officer, trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred at the Corporate Trust Office
because of his or her knowledge of and familiarity with the particular subject.
"Rights" has the meaning specified in Section 14.11.
"Rights Agreement" has the meaning specified in Section 14.11.
"Security" or "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" has the meaning specified in Section 2.8.
"Senior Indebtedness" means (a) indebtedness or obligations of, or
guaranteed or assumed by, the Company for borrowed money which is evidenced by
bonds, debentures, notes or other similar instruments unless, by the terms of
such indebtedness or obligation it is provided that such indebtedness or
obligation is not senior in right of payment to the Securities of any Series,
and (b) any amendments, renewals, extensions, modifications and refinancings of
any such indebtedness or obligations; provided that Senior Indebtedness shall
not include the Securities of any Series.
"Series" or "Series of Securities" means all Securities of a similar
tenor authorized by a particular resolution of the Board of Directors.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date on which
the principal of such Security or such installment of principal or interest is
due and payable in accordance with the terms thereof.
"Trading Day" has the meaning specified in Section 14.3.
"Trust Indenture Act" or "TIA" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof until a successor Trustee shall have become such pursuant to
the provisions hereof, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any Series
shall mean the Trustee with respect to Securities of that Series.
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"United States of America" or "United States" means the United States
of America (including the states and the District of Columbia), its territories,
possessions, the Commonwealth of Puerto Rico and other areas subject to its
jurisdiction.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Person" means a citizen or resident of the United States of
America, a corporation, partnership or other entity created or organized in or
under the laws of the United States of America or any political subdivision
thereof or an estate or trust the income of which is subject to United States of
America Federal income taxation regardless of whether such income is from
sources within or without the United States of America or whether or not such
income is effectively connected with the conduct of a trade or business within
the United States of America.
"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 of "vice president."
ARTICLE II
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each Series and the
Coupons, if any, to be attached thereto shall be substantially in such form
(including temporary or definitive global form) as shall be established by or
pursuant to a resolution of the Board of Directors 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 (the provisions of which shall be appropriate to reflect the terms of
the Series of Securities represented thereby) and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
officers executing such Securities and Coupons, if any, as evidenced by their
execution of the Securities and Coupons.
The definitive Securities and Coupons, if any, 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 and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
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This is one of the Securities of the Series designated herein and
referred to in the within-mentioned Indenture.
as Trustee
By:
---------------------------
Authorized Signatory
or
,
---------------------------
as Trustee
By: ,
---------------------------
as Authentication Agent
By:
---------------------------
Authorized Signatory
SECTION 2.3 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 and the Securities
of each Series shall rank equally. There shall be established in or pursuant to
one or more resolutions of the Board of Directors and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any Series,
(a) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from all other Securities issued
by the Company);
(b) any limit upon the aggregate principal amount of the Securities of
the Series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
Series pursuant to Sections 2.8, 2.9, 2.11, 8.5, 12.3 or 14.2);
(c) if other than 100% of their principal amount, the percentage of
their principal amount at which the Securities of the Series will be
offered for sale to the public;
(d) if other than Dollars, the coin or currency in which the
Securities of that Series are denominated (including, but not limited to,
any Foreign Currency or ECU);
(e) the date or dates on which the principal of the Securities of the
Series is payable or the method of determination thereof;
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(f) the rate or rates (which may be fixed or variable), or the method
or methods of determination thereof, at which the Securities of the Series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the interest payment dates on which such interest shall be
payable and (in the case of Registered Securities) the record dates for the
determination of Holders to whom interest is payable;
(g) the place or places where the principal of and interest, if any,
on Securities of the Series shall be payable (if other than as provided in
Section 3.2);
(h) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the Series may be
redeemed, in whole or in part, at the option of the Company;
(i) 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 pursuant to Section 5.1 or
provable in bankruptcy pursuant to Section 5.2;
(j) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the Series whether pursuant to any sinking fund or
analogous provisions or pursuant to other provisions set forth therein or
at the option of a Holder thereof and the price or prices, at which and the
period or periods within which and the terms and conditions upon which
Securities of the Series shall be redeemed, purchased or repaid, in whole
or in part;
(k) if other than denominations of $1,000, and any integral multiple
thereof, in the case of Registered Securities, or $1,000 and $5,000 in the
case of Unregistered Securities, the denominations in which Securities of
the Series shall be issuable;
(l) the form of the Securities, including such legends as required by
law or as the Company deems necessary or appropriate and the form of any
temporary global security which may be issued;
(m) whether, and under what circumstances, the Securities of any
Series shall be convertible into Common Stock or Securities of any other
Series, or cash in lieu thereof, and, if so, the terms and conditions upon
which such conversion will be effected including the initial conversion
price or rate, the conversion period and other provisions in addition to or
in lieu of those described herein;
(n) if other than the coin or currency in which the Securities of that
Series are denominated, the coin or currency in which payment of the
principal of or interest on the Securities of such Series shall be payable
(including, but not limited to, any Foreign Currency or ECU);
(o) if the principal of or interest on the Securities of such Series
are to be payable, at the election of the Company or a Holder thereof, in a
coin or currency other than that in
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which the Securities are denominated, the period or periods within which,
and the terms and conditions upon which, such election may be made;
(p) if the amount of payments of principal of and interest on the
Securities of the Series may be determined with reference to an index,
formula or method, the manner in which such amounts shall be determined;
(q) whether the Securities of the Series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable
as Registered Global Securities) or Unregistered Securities (with or
without Coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided in Section 2.8,
the terms upon which Unregistered Securities of any Series may be exchanged
for Registered Securities of such Series and vice versa;
(r) whether, under what circumstances and in what amounts the Company
will pay additional amounts on the Securities of the Series held by a
person who is not a U.S. Person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the Company
will have the option to redeem such Securities rather than pay such
additional amounts;
(s) if the Securities of such Series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such Series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(t) if other than the Trustee, any trustees, depositaries,
authenticating or Paying Agents, transfer agents or registrars or any other
agents with respect to the Securities of such Series;
(u) if the Securities of such Series do not bear interest, the
applicable dates for purposes of Section 4.1 hereof;
(v) whether the Securities of such Series are to be issuable in whole
or in part in the form of one or more Depositary Securities, and, in such
case, the Depositary for such Securities;
(w) the application, if any, of either or both of Section 10.1(B)(ii)
or 10.1(B)(iii) to the Securities of the Series;
(x) any other events of default or covenants with respect to the
Securities of such Series; and
(y) any other terms or conditions upon which the Securities of the
Series are to be issued (which terms shall not be inconsistent with the
provisions of this Indenture).
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All Securities and Coupons, if any, appertaining thereto of any one
Series shall be substantially identical except in the case of Registered
Securities as to denomination and except as may otherwise be provided in or
pursuant to such resolution of the Board of Directors or in any such indenture
supplemental hereto. All Securities of any one Series need not be issued at the
same time, and unless otherwise provided, a Series may be reopened for issuances
of additional Securities of such Series.
SECTION 2.4 Authentication and Delivery of Securities. At any time
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any Series, having attached thereto
appropriate Coupons, if any, executed by the Company to the Trustee for
authentication, and the Trustee shall thereupon authenticate and make available
for delivery such Securities to or upon the written order of the Company, signed
by both (a) the chairman of its Board of Directors, or any vice chairman of its
Board of Directors, or its president or any vice president and (b) its treasurer
or any assistant treasurer, secretary or any assistant secretary without any
further action by the Company. In authenticating such Securities and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive and (subject to Section
6.1) shall be fully protected in relying upon:
(a) a copy of any resolution or resolutions of the Board of Directors
relating to such Series, in each case certified by the secretary or an
assistant secretary of the Company;
(b) a supplemental indenture, if any;
(c) an Officers' Certificate setting forth the form and terms of the
Securities of such Series and Coupons, if any, as required pursuant to
Sections 2.1 and 2.3, respectively, and prepared in accordance with Section
11.5;
(d) an Opinion of Counsel, prepared in accordance with Section 11.5,
which shall state that:
(i) the form or forms and terms of such Securities and Coupons,
if any, have been established by or pursuant to a resolution of the
Board of Directors or by a supplemental indenture as permitted by
Sections 2.1 and 2.3 in conformity with the provisions of this
Indenture and in conformity with such resolution or supplemental
indenture, as the case may be, and
(ii) such Securities, and Coupons, if any, have been duly
authorized, and, 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
binding obligations of the Company enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or other laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable
principles, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
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Notwithstanding the provisions of Section 2.3 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 resolution of the Board of
Directors and/or Officers' Certificate otherwise required pursuant to Section
2.3 or the Officers' Certificate and Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of authentication
of each Security of such Series if such documents are delivered at or prior to
the time of authentication upon original issuance of the first Security of such
Series to be issued. After the original issuance of the first Security of such
Series to be issued, any separate request by the Company that the Trustee
authenticate Securities of such Series for original issuance will be deemed to
be a certification by the Company that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee is advised by counsel
in good faith that the issuance of such Securities would expose the Trustee to
personal liability or is unlawful.
If the Company shall establish pursuant to Section 2.3 that the
Securities of a Series are to be issued in the form of one or more Registered
Global Securities, then the Company shall execute and the Trustee shall, in
accordance with this Section, authenticate and deliver one or more Registered
Global Securities that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Securities of such Series
issued and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time
of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Company by both (a) the chairman of its Board of Directors or its president or
any vice president and (b) its treasurer or any assistant treasurer or its
secretary or any assistant secretary, under its corporate seal (except in the
case of Coupons) which may, but need not, be attested. Such signatures may be
the manual or facsimile signatures of such officers. 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. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
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In case any officer of the Company who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Company, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Company; and any Security or Coupon may
be signed on behalf of the Company by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of the
Company, although at the date of the execution and delivery of this Indenture
any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited and executed by the Trustee by the manual signature of one
of its authorized signatories shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. No Coupon shall be
entitled to the benefits of this Indenture or shall be valid and obligatory for
any purpose until the certificate of authentication on the Security to which
such Coupon appertains shall have been duly executed by the Trustee. The
execution of such certificate by the Trustee upon any Security executed by the
Company shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is entitled to
the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10 together with a written statement (which need not
comply with Section 11.5 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of the Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of the Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each Series shall be issuable as Registered
Securities or Unregistered Securities in denominations as shall be specified as
contemplated by Section 2.3. In the absence of any such specification with
respect to the Securities of any Series, Registered Securities shall be issuable
in denominations of $1,000 and any integral multiple thereof, and Unregistered
Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each Series shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Company executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in the
resolution or resolutions of the Board of Directors of the Company referred to
in Section 2.3. The Securities of each Series shall bear interest, if any, from
the date, and such interest shall be payable on the dates, established as
contemplated by Section 2.3.
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Unless otherwise provided as contemplated by Section 2.3, interest on
any Registered 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 Registered Security (or one or more predecessor Registered Securities)
is registered at the close of business on the regular record date for the
payment of such interest.
The term "record date" as used with respect to any interest payment
date (except for a date for payment of defaulted interest) shall mean the date
specified as such in the terms of the Securities of any particular Series, or,
if no such date is so specified, the close of business on the fifteenth day
preceding such interest payment date, whether or not such record date is a
Business Day.
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 (called
"defaulted interest" for purposes of this Section) shall forthwith cease to be
payable to the Registered Holder on the relevant record date by virtue of his
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 clause (2) below:
(1) The Company may elect to make payment of any defaulted
interest to the persons in whose names any such Securities (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 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 in respect of Securities of such Series which shall be not
more than 15 nor less than 10 days prior to the date of the proposed
payment and not less than 10 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 thereof to be
mailed, first class postage prepaid, to each Registered Holder at his
address as it appears in the Security Register, not less than 10 days
prior to such special record date. Notice of the proposed payment of
such defaulted interest and the special record date therefor having
been mailed as aforesaid, such defaulted interest in respect of
Securities of such Series shall be paid to the person in whose names
such Securities (or their respective predecessor Securities) are
registered on such special record date and such defaulted interest
shall no longer be payable pursuant to the following clause (2).
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(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 the
Securities of that Series may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 2.8 Registration, Transfer and Exchange. The Company will
cause to be kept at each office or agency to be maintained for the purpose as
provided in Section 3.2 for each Series of Securities a register or registers
(herein sometimes referred to as the "Securities Register") in which, subject to
such reasonable regulations as it may prescribe, the Company will provide for
the registration and the registration of the transfer of, the Registered
Securities. The Trustee is hereby appointed Security registrar for purposes of
registering, and registering transfers of, the Securities.
Upon surrender for registration of transfer of any Registered Security
of any Series at any such office or agency to be maintained for the purpose as
provided in Section 3.2 for each Series of Securities, the Company shall execute
and the Trustee shall authenticate and make available for delivery in the name
of the transferee or transferees a new Registered Security or Registered
Securities of the same Series and of a like tenor and containing the same terms
(other than the principal amount thereof, if more than one Registered Security
is executed, authenticated and delivered with respect to any Registered Security
so presented, in which case the aggregate principal amount of the executed,
authenticated and delivered Registered Securities shall equal the principal
amount of the Security presented in respect thereof) and conditions.
Unregistered Securities (except for any temporary Unregistered
Securities) and Coupons (except for Coupons attached to any temporary
Unregistered Global Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
Series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such Series
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with Section 3.2
and upon payment, if the Company shall so require, of the charges hereinafter
provided. If the Securities of any Series are issued in both registered and
unregistered form, except as otherwise specified pursuant to Section 2.3, at the
option of the Holder thereof, Unregistered Securities of any Series may be
exchanged for Registered Securities of such Series having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company that shall
be maintained for such purpose in accordance with Section 3.2, with, in the case
of Unregistered Securities that have Coupons attached, all unmatured Coupons
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and all matured Coupons in default thereto appertaining, and upon payment, if
the Company shall so require, of the charges hereinafter provided. At the
option of the Holder thereof, if Unregistered Securities of any Series, maturity
date, interest rate and original issue date are issued in more than one
authorized denomination, except as otherwise specified pursuant to Section 2.3,
such Unregistered Securities may be exchanged for Unregistered Securities of
such Series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance
with Section 3.2 or as specified pursuant to Section 2.3, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default appertaining thereto, and upon payment, if the
Company shall so require, of the charges hereinafter provided. Unless otherwise
specified pursuant to Section 2.3, Registered Securities of any Series may not
be exchanged for Unregistered Securities of such Series. 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 and Coupons surrendered upon
any exchange or transfer provided for in this Indenture shall be promptly
cancelled and disposed of by the Trustee and the Trustee will deliver a
certificate of disposition thereof to the Company.
All Securities issued upon any 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 transfer or exchange.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Securities, other than exchanges
pursuant to Sections 2.11, 8.5 or 12.3 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a 15 day period prior to the day of mailing
of the relevant notice of redemption, (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except, in
the case of any Security to be redeemed in part, the portion thereof not
redeemed or (iii) to register the transfer of or exchange any Security as to
which a Holder has exercised any right to require the Company to purchase such
Security, in whole or in part, except any portion thereof not required to be
purchased.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a Series may not be transferred except as a whole by the
Depositary for such Series to a nominee of such Depositary or by a nominee of
such
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Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such Series or a
nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a
Series represented by one or more Registered Global Securities notifies the
Company that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Company shall
appoint a successor Depositary with respect to such Registered Securities. If a
successor Depositary for such Registered Securities is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 2.3 that such
Registered Securities be represented by one or more Registered Global Securities
shall no longer be effective and the Company will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and delivery of
definitive Securities of such Series, will authenticate and deliver, Securities
of such Series in definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such Registered
Securities in exchange for such Registered Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Registered Securities of any Series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Company will execute, and the
Trustee, upon receipt of an Officers' Certificate for the authentication and
delivery of definitive Securities of such Series, will authenticate and deliver,
Securities of such Series in definitive registered form without Coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
such Registered Securities, in exchange for such Registered Global Security or
Securities.
If an Event of Default occurs and is continuing with respect to
Registered Securities of any Series issued in the form of one or more Registered
Global Securities, upon written notice from the Depositary, the Company will
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such Series, will
authenticate and deliver, Securities of such Series in definitive registered
forms without Coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered Global Security
or Securities, representing such Registered Securities, in exchange for such
Registered Global Security or Securities.
If specified by the Company pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same Series in definitive
registered form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge to the Holder,
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(i) to the Person specified by such Depositary a new Registered
Security or Securities of the same Series, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without Coupons, in authorized denominations, such
Registered Global Security shall be cancelled by the Trustee or an agent of the
Company or the Trustee. Securities in definitive registered form without
Coupons issued in exchange for a Registered Global Security pursuant to this
Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Registered Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or agent of the Company or the Trustee. The Trustee or
such agent shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
Notwithstanding anything herein or in the terms of any Series of
Securities to the contrary, none of the Company, the Trustee or any agent of the
Company or the Trustee (any of which, other than the Company, shall rely on an
Officers' Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for a Registered Security if such exchange would
result in adverse Federal income tax consequences to the Company (such as, for
example, the inability of the Company to deduct from its income, as computed for
Federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be destroyed,
lost or stolen, then, in the absence of notice to the Company or the Trustee
that the Security has been acquired by a bona fide purchaser, the Company shall
execute, and upon the written request of any officer of the Company, the Trustee
shall authenticate and make available for delivery a new Security of the same
Series and of like tenor and principal amount and with the same terms and
conditions, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security or in lieu of and
substitution for the Security so destroyed, lost or stolen, in each case
together with Coupons corresponding to the Coupons appertaining to the
Securities so mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the Company and
to the Trustee and to any agent of the Company or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and, in every case of destruction, loss or theft, evidence to
their satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof and in the case of mutilation or defacement shall surrender
the Security and related Coupons to the Trustee or such agent.
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Upon the issuance of any substitute Security or Coupon, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee or its agent) connected
therewith. In case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full or is being surrendered for
conversion in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security, pay or
authorize the payment of the same or the relevant Coupon (without surrender
thereof except in the case of a mutilated or defaced Security); provided,
however, that unless otherwise provided pursuant to Section 2.3, the applicant
for such payment shall furnish to the Company and to the Trustee and any agent
of the Company or the Trustee such security or indemnity as any of them may
require to save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and the Trustee and
any agent of the Company or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof.
Every substitute Security or Coupon of any Series issued pursuant to
the provisions of this Section by virtue of the fact that any Security or Coupon
is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities or Coupons of such Series duly authenticated and delivered hereunder.
All Securities or Coupons shall be held and owned upon the express condition
that, to the extent permitted by the law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced, destroyed,
lost or stolen Securities or Coupons and shall preclude any and all other rights
or remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof. All
Securities and Coupons surrendered for payment, redemption, registration of
transfer, exchange or conversion, or for credit against any payment in respect
of a sinking or analogous fund, shall, if surrendered to the Company or any
agent of the Company or the Trustee, be delivered to the Trustee for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities or Coupons shall be issued in lieu thereof, except as expressly
permitted by any of the provisions of this Indenture. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold and all
Securities so delivered shall be promptly cancelled by the Trustee. The Trustee
shall return cancelled Securities and Coupons held by it or provide a
certificate of destruction to the Company. If the Company shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any Series, the Company may execute and the Trustee
shall authenticate and make available for delivery temporary Securities for such
Series (printed, lithographed, typewritten or
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otherwise reproduced, in each case in form reasonably acceptable to the
Trustee). Temporary Securities of any Series shall be issuable as Registered
Securities without Coupons, or as Unregistered Securities with or without
Coupons attached thereto, of any authorized denomination, and substantially in
the form of the definitive Securities of such Series but with such omissions,
insertions and variations as may be appropriate for temporary Registered
Securities, all as may be determined by the Company with the reasonable
concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay the Company
shall execute and shall furnish definitive Securities of such Series and
thereupon temporary Securities of such Series may be surrendered in exchange
therefor without charge to the Holder at each office or agency to be maintained
by the Company for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Company for such
purpose as specified pursuant to Section 2.3, and the Trustee shall authenticate
and make available for delivery in exchange for such temporary Securities of
such Series an equal aggregate principal amount of definitive Securities of the
same Series of authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so
exchanged, the temporary Securities of any Series shall be entitled to the same
benefits under this Indenture as definitive Securities of sch Series. The
provisions of this Section are subject to any restrictions or limitations on the
issue and delivery of temporary Unregistered Securities of any Series that may
be established pursuant to Section 2.3 (including any provision that
Unregistered Securities of such Series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary or agency
located outside the United States and the procedure pursuant to which definitive
or global Unregistered Securities of such Series would be issued in exchange for
such temporary global Unregistered Security).
ARTICLE III
COVENANTS OF THE COMPANY
SECTION 3.1 Payment of Principal and Interest. The Company
covenants and agrees for the benefit of each particular Series of Securities
that it will duly and punctually pay or cause to be paid the principal of, and
interest on, each of the Securities of such Series in accordance with the terms
of such Securities and in the Coupons, if any, appertaining thereto and in this
Indenture. The interest on Securities with Coupons attached (together with any
additional amounts payable pursuant to the terms of such Securities) shall be
payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid while
such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable pursuant to
the terms of such Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of interest, if any, only
upon presentation of such Securities for notation thereon of the payment of such
interest, in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest on
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Registered Securities (together with any additional amounts payable pursuant to
the terms of such Securities) shall be payable only to or upon the written order
of the Holders thereof and at the option of the Company may be paid by wire
transfer (to Holders of $10,000,000 or more of Registered Securities) or by
mailing checks for such interest payable to or upon the written order of such
Holders at their last addresses as they appear on the Security Register.
Notwithstanding the provisions of Section 2.3 and Section 2.7, unless
otherwise specified as contemplated by Section 2.3, payment of principal of and
any interest on any Security in definitive global form shall be made to the
Person or Persons specified therein.
Except as provided in the preceding paragraph, the Company, the
Trustee and any agent of the Company and the Trustee shall treat a Person as the
Holder of such principal amount of Outstanding Securities represented by a
definitive global Security as shall be specified in a written statement of the
Holder of such definitive global Security.
SECTION 3.2 Offices for Payment, etc. So long as any of the
Securities remain outstanding, the Company will maintain the following for each
Series: an office or agency (a) where the Securities may be presented for
payment, (b) where the Registered Securities may be presented for registration
of transfer and for exchange as provided in this Indenture, (c), if applicable,
an office or agency where the Securities may be presented for conversion
("Conversion Agent"), and (d) where notices and demands may be served upon the
Company in respect of the Securities of any Series, the Coupons appertaining
thereto, or this Indenture. The Company will maintain one or more agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any stock
exchange on which the Securities of such Series are listed) where the
Unregistered Securities, if any, of each Series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on any
Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an agency of the Company within the United
States nor will any payment be made by transfer to an account in, or by mail to
an address in, the United States unless, pursuant to applicable United States
laws and regulations then in effect, such payment can be made without adverse
tax consequences to the Company. Notwithstanding the foregoing, payments in
Dollars of Unregistered Securities of any Series and Coupons appertaining
thereto which are payable in Dollars may be made at an agency of the Company
within the United States if such payment in Dollars at each agency maintained by
the Company outside the United States for payment on such Unregistered
Securities is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company will give to the Trustee written notice of the location of
any such office or agency and of any change of location thereof. In case the
Company shall fail to so designate or maintain any such office or agency or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Corporate Trust Office. Unless otherwise specified pursuant to Section 2.3, the
Trustee is hereby appointed Paying Agent and Conversion Agent.
SECTION 3.3 Paying Agents. Whenever the Company shall appoint a
Paying Agent other than the Trustee with respect to the Securities of any
Series, it will cause such Paying Agent
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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,
(a) that it will hold all sums received by it as such Paying Agent for
the payment of the principal of or interest on the Securities of such
Series (whether such sums have been paid to it by the Company or by any
other obligor on the Securities of such Series) in trust for the benefit of
the Holders of the Securities of such Series, or Coupons appertaining
thereto, if any, or of the Trustee, and upon the occurrence of an Event of
Default and upon the written request of the Trustee, pay over all such sums
received by it to the Trustee, and
(b) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities of such Series) to make any
payment of the principal of or interest on the Securities of such Series
when the same shall be due and payable.
The Company will, on or prior to each due date of the principal of or
interest on the Securities of such Series, deposit in a timely manner with the
Paying Agent a sum sufficient to pay such principal or interest so becoming due,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of any failure to take such action.
If the Company shall act as its own Paying Agent with respect to the
Securities of any Series, it will, on or before each due date of the principal
of or interest on the Securities of such Series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such Series or the
Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Company will promptly notify the Trustee of any failure to
take such action.
Anything in this Section to the contrary notwithstanding, but subject
to Section 10.1, the Company may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all Series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such Series by the Company or any Paying
Agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
SECTION 3.4 Written Statement to Trustee. 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 brief certificate (which need not comply with
Section 11.5) from the principal executive, financial or accounting officer of
the Company as to his or her knowledge, after due inquiry, of the Company's
compliance with all conditions and covenants under the Indenture (such
compliance to be determined without regard to any period of grace or requirement
of notice provided under the Indenture), and if the Company shall not be in
compliance, specifying all such defaults or non-compliance and the nature and
status thereof.
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SECTION 3.5 Luxembourg Publications. In the event of the publication
of any notice pursuant to Section 8.2, 10.4 or 12.2, the party making such
publication in the Borough of Manhattan, The City of New York and London shall
also, to the extent that notice is required to be given to Holders of Securities
of any series by applicable Luxembourg law or stock exchange regulations, as
evidenced by an Officers' Certificate delivered to such party, make a similar
publication in Luxembourg.
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Registered Securities of each Series:
(a) semiannually and not more than 15 days after each record date for
the payment of interest on such Registered Securities, as hereinabove
specified, as of such record date and on such dates to be determined
pursuant to Section 2.3 for noninterest bearing Registered Securities in
each year, and
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Company of any such request,
such list to be as of a date not more than 15 days prior to the time such
information is furnished,
provided that if and so long as the Trustee shall be the Security registrar for
such Series and all of the Securities of any Series are Registered Securities,
such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders
of each Series of Registered Securities contained in the most recent list
furnished to it as provided in Section 4.1 or maintained by the Trustee in
its capacity as Security registrar for such Series, if so acting. The
Trustee may destroy any list furnished to it as provided in Section 4.1
upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities of any Series
(hereinafter referred to as "applicants") apply in writing to the Trustee
and furnish to the Trustee reasonable proof that each such applicant has
owned a Security for a period of at least six months preceding the date of
such application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular Series (in
which case the applicants must all hold Securities of such Series) or with
Holders of all Securities with
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respect to their rights under this Indenture or under such Securities and
such application is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at
its election, either
(i) afford to such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number of
Holders of Registered Securities of such Series or of all Registered
Securities, as the case may be, whose names and addresses appear in
the information preserved at the time by the Trustee, in accordance
with the provisions of subsection (a) of this Section, as to the
approximate cost of mailing to such Securityholders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such Series or all Holders of
Registered Securities, as the case may be, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section, a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Registered Securities of such Series or of all Registered Securities, as the
case may be, or could be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after the
entry of such order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections so
sustained have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Securityholders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every Holder of Securities and Coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of the Company or the Trustee shall
be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
the provisions of subsection (b) of this Section, regardless of the source
from which such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a request
made under such subsection (b).
SECTION 4.3 Reports by the Company. The Company covenants:
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(a) to file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, or if the Company is not required to file
information, documents, or reports pursuant to either of such Sections,
then to file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents, and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents, and reports with respect to compliance
by the Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations; and
(c) to transmit by mail to the Holders of Securities in the manner and
to the extent required by Sections 6.6 and 11.4, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents, and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section as may be required to be
transmitted to such Holders by rules and regulations prescribed from time
to time by the Commission.
ARTICLE V
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default" with respect to Securities of any Series
wherever used herein, means any one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless it is either
inapplicable to a particular Series or it is specifically deleted or modified in
or pursuant to the supplemental indenture or resolution of the Board of
Directors establishing such Series of Securities or in the form of Security for
such Series:
(a) 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
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(b) default in the payment of all or any part of the principal of any
of the Securities of such Series as and when the same shall become due and
payable, either at maturity, upon any redemption, by declaration or
otherwise; or
(c) default in the performance, or breach of any covenant or warranty
of the Company contained in the Securities of such Series or in this
Indenture (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for the benefit
of a Series of Securities other than that Series), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that Series a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(d) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of all or any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(e) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(f) any other Event of Default provided with respect to Securities of
such Series.
If an Event of Default occurs and is continuing with respect to the Securities
of any Series, then and in each and every such case, unless the principal of all
Securities of such Series shall have already
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become due and payable, either the Trustee for such Series or the Holders of not
less than 25% in aggregate principal amount of the Securities of such Series
then Outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by such Holders), may declare the entire principal (or, if the
Securities of such affected Series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such Series)
of all the Securities of such Series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable. This provision, however, is subject to the condition that if at any
time after the principal (or, if the Securities or such affected Series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such Series) of the Securities of such Series shall
have been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all the
Securities of such Series and the principal of any and all Securities of such
Series which shall have become due otherwise than by such acceleration (with
interest upon such principal) and, to the extent that payment of such interest
is enforceable under applicable law, upon overdue installments of interest, at
the same rate as the rate of interest or yield to maturity (in the case of
Original Issue Discount Securities) specified in the Securities of such Series
to the date of such payment or deposit) and in Dollars such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel and if all other expenses and liabilities incurred, and
all advances with interest made, by the Trustee, its agents, attorneys and
counsel and any and all defaults under this Indenture, other than the nonpayment
of the principal of Securities of such Series which shall have become due by
such acceleration, shall have been remedied, then and in every such case the
Holders of a majority in aggregate principal amount of the Securities of such
Series then Outstanding, by written notice to the Company and to the Trustee for
the Securities of such Series, may waive all defaults and rescind and annul such
declaration and its consequences; but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of the Original Issue
Discount Securities.
SECTION 5.2 Collection of Indebtedness By Trustee; Trustee May
Prove Debt. The Company covenants that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities of any Series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days, or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
Series when the same shall have become due and payable, whether upon Maturity or
upon any redemption or by declaration or otherwise, then upon demand of the
Trustee for the Securities of such Series, the Company will pay to the Trustee
for the Securities of such Series for the benefit of the Holders of
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the Securities of such Series the whole amount that then shall have become due
and payable on all Securities of such Series for principal of or interest, as
the case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the rate
of interest or yield to maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such Series); and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to, and all expenses
and liabilities incurred and all advances with interest made by, the Trustee and
each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Company may pay the
principal of and interest on the Securities of any Series to the persons
entitled thereto, whether or not the principal of and interest on the Securities
of such Series are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee for the Securities of such Series, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon such Securities and collect in the manner provided
by law out of the property of the Company or other obligor upon such Securities,
wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or its property or such other obligor, or in
case of any other comparable judicial proceedings relative to the Company or
other obligor under the Securities of any Series, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any Series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such Series) owing and unpaid in respect of the
Securities of any Series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to, and all expenses and
liabilities incurred and all advances with interest made by, the Trustee
and each predecessor Trustee, and their respective agents, attorneys and
counsel, except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the Company
or other
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obligor upon all Securities of any Series, or to the creditors or property
of the Company or such other obligor, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee for the Securities of such Series, and, in the
event that such Trustee shall consent to the making of payments directly to
the Securityholders, to pay to such Trustee such amounts as shall be
sufficient to cover reasonable compensation to, and all expenses and
liabilities incurred and all advances with interest made by, such Trustee,
each predecessor Trustee and their respective agents, attorneys and counsel
and all other amounts due to such Trustee or any predecessor Trustee
pursuant to Section 6.7, except as a result of Trustee's negligence or bad
faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of any Series or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities or Coupons appertaining to such Securities, may be
enforced by the Trustee for the Securities of such Series or Coupons without the
possession of any of the Securities of such Series or Coupons appertaining to
such Securities or the production thereof at any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses, disbursements and
compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Securities or Coupons appertaining to such Securities in respect of which such
action was taken.
In any proceedings brought by the Trustee for the Securities of such
Series (and also any proceedings involving the interpretation of any provision
of this Indenture to which the Trustee shall be a party), the Trustee shall be
held to represent all the Holders of the Securities or Coupons appertaining to
such Securities in respect to which such action was taken, and it shall not be
necessary to make any Holders of such Securities or Coupons appertaining to such
Securities parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by the
Trustee for the Securities of such Series pursuant to this Article in respect of
the Securities of any Series shall be applied in the following order at the date
or dates fixed by such Trustee and, in case of the distribution of such moneys
on account of principal or interest, upon presentation of the several Securities
and Coupons appertaining to such Securities in respect of which moneys have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such
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Series in reduced principal amounts in exchange for the presented Securities of
like Series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such Series
in respect of which moneys have been collected, including reasonable
compensation to, and all expenses and liabilities incurred and all advances
with interest made by, the Trustee and each predecessor Trustee and their
respective agents and attorneys and all other amounts due to the Trustee or
any predecessor Trustee pursuant to Section 6.7, except as a result of
Trustee's negligence or bad faith;
SECOND: To the payment of the amounts then due and unpaid for
interest on the Securities of such Series for which principal is not yet
due and payable in respect of which moneys have been collected, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference, according to the amounts then due and payable
on such Securities for interest;
THIRD: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities of such Series for which
principal is due and payable in respect of which moneys have been
collected, such payments to be made ratably to the persons entitled thereto
without discrimination or preference, according to the amounts then due and
payable on such Securities for principal and interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company or
any other Person lawfully entitled thereto.
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings.
In case the Trustee for the Securities of any Series or any Holder shall have
proceeded to enforce any right under this Indenture and such proceedings shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to the determination in any such proceeding, the Company, the
Trustee and the Holders shall be restored respectively to their former positions
and rights hereunder, and all rights, remedies and powers of the Company, the
Trustee and the Securityholders shall continue as though no such proceedings had
been taken.
SECTION 5.5 Limitations on Suits by Securityholders. No Holder of
any Security of any Series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Indenture, or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of such Series then Outstanding
shall have made written request upon the Trustee to institute such action or
proceedings in its own name as trustee hereunder and shall have offered to the
Trustee such reasonable indemnity, as it may require, against the costs,
expenses and liabilities to be incurred therein or thereby and the Trustee for
60 days after
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its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee during such 60-day period
by Holders of a majority in principal amount of the Securities of such Series
then Outstanding; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security or Coupon with every other
taker and Holder of a Security or Coupon and the Trustee, that no one or more
Holders of Securities of any Series or Coupons appertaining to such Securities
shall have any right in any manner whatever, by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other such Holder of Securities of such Series, or to obtain or seek to obtain
priority over or preference to any other such Holder or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Securities of the applicable Series
and Coupons appertaining to such Securities.
SECTION 5.6 Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any provision in this Indenture and any provision
of any Security, the right of any Holder of any Security or Coupon to receive
payment of the principal of and (subject to Section 2.7) interest on such
Security or Coupon at the respective rates, in the respective amount on or after
the respective due dates expressed in such Security or Coupon, and to institute
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 2.9 and Section 5.5, no right
or remedy herein conferred upon or reserved to the Trustee or to the
Securityholders 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.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.5, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
the Securityholders.
SECTION 5.8 Control by Securityholders. The Holders of a majority
in aggregate principal amount of the Securities of each Series affected (with
each Series treated as a separate class) at the time Outstanding 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 by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that the Trustee,
being advised by counsel, shall have the right to decline to follow any such
direction if the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or if the Trustee in
good faith shall so determine that the
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actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all Series
so affected not joining in the giving of said direction.
SECTION 5.9 Waiver of Past Defaults. The Holders of not less than
a majority in aggregate principal amount of the Securities of any Series at the
time Outstanding may on behalf of the Holders of all the Securities of such
Series waive any past default hereunder or its consequences, except a default in
the payment of the principal of or interest on any of the Securities of such
Series.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.10 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security or
Coupon, by his acceptance thereof, shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or group
of Securityholders of any Series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such Series, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security or any date fixed for redemption.
SECTION 5.11 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
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ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing with respect
to the Securities of any Series, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and
skill in its exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect
to the Securities of any Series:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming on their face to the
requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether or
not they conform on their face to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph (c) does not limit the effect of paragraph (b)
of this Section 6.1;
(ii) 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
(iii) 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 5.8.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 6.1.
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(e) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed in writing with the Company.
SECTION 6.2 Rights of Trustee.
Subject to Section 6.1 and the provisions of the Trust Indenture Act:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel.
(c) Subject to the provisions of Section 6.1(c), the Trustee shall not
be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
(d) The Trustee may consult with counsel of its selection and the
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 in accordance
with such advice or Opinion of Counsel.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(f) The Trustee 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.
SECTION 6.3 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
or Coupons and may otherwise deal with the Company or its affiliates with the
same rights it would have if it were not Trustee. Any Paying
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Agent, registrar or coregistrar may do the same with like rights. However, the
Trustee must comply with Sections 6.10 and 6.11.
SECTION 6.4 Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities or Coupons, it shall not be accountable for the Company's use of the
proceeds from the Securities, it shall not be responsible for any statement in
the registration statement for the Securities under the Securities Act of 1933
or in the Indenture or the Securities (other than its certificate of
authentication).
SECTION 6.5 Notice of Defaults. If a default occurs and is
continuing with respect to any Securities of any Series and if it is known to
the Trustee through oral or written notice to a corporate trust officer, the
Trustee shall give to each Securityholder of such Series notice of the default
within 90 days after such default occurs. Except in the case of a default
described in Section 5.1(a) or (b), the Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Securityholders of such Series.
SECTION 6.6 Reports by Trustee to Holders. Within 60 days after
each June 1 beginning with the June 1 following the date of this Indenture, the
Trustee shall mail to each Securityholder of any Series and each other person
specified in TIA Section 313(c) a brief report dated as of such June 1 that
complies with TIA Section 313(a) to the extent required thereby. The Trustee
also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders of
any Series shall be filed with the Commission and each securities exchange on
which the Securities of any Series are listed. The Company agrees promptly to
notify the Trustee whenever the Securities of any Series become listed on any
securities exchange and of any delisting thereof.
SECTION 6.7 Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time in Dollars such
compensation as shall be agreed to in writing between the Company and the
Trustee for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances with interest thereon incurred or made
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses, advances with
interest thereon and disbursements of its agents and counsel), except to
the extent any such expense, disbursement or advance may be attributable to
its negligence or bad faith; and
(c) to indemnify the Trustee in Dollars for, and to hold it harmless
against, any loss, liability or expense arising out of or in connection
with the acceptance or administration of this trust or the performance of
its duties hereunder, including the costs and expenses of
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defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder (including
the reasonable compensation and the expenses, advances with interest
thereon and disbursements of its agents and counsel), except to the extent
that any such loss, liability or expense may be attributable to its
negligence or bad faith.
As security for the performance of the obligations of the Company in
this Section 6.7, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in trust to
pay the principal of or interest, if any, on particular Securities.
"Trustee" for purpose of this Section 6.7 includes any predecessor
Trustee, provided that the negligence or bad faith of any Trustee shall not be
attributable to any other Trustee.
The Company's payment obligations pursuant to this Section 6.7 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a default specified in Sections 5.1(d) and 5.1(e), such
expenses are intended to constitute expenses of administration under bankruptcy
law.
SECTION 6.8 Replacement of Trustee. The Trustee may resign at any
time with respect to Securities of one or more Series by so notifying the
Company; provided, however, no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant to this Section 6.8.
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of any Series may remove the Trustee with respect to such Series at
the time outstanding by so notifying the Trustee and the Company. The Company
shall remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of one or more
Series, the Company shall promptly appoint, by resolution of its Board of
Directors, a successor Trustee with respect to the Securities of such Series.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture with respect to the Securities of such Series. The
successor Trustee shall mail a notice of its succession to Securityholders so
affected. The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, subject to the lien provided for in Section
6.7.
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If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of the Securities of each
Series at the time Outstanding so affected may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 6.9 Successor Trustee by Xxxxxx. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 6.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1) and Section 310(a)(5).
The Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b).
SECTION 6.11 Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by a
specified percentage in principal amount of the Securityholders of any or all
Series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of
Securityholders 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. Proof of execution
of any instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Sections 6.1 and 6.2)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Article.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security Register.
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SECTION 7.2 Proof of Execution of Instruments. Subject to Sections
6.1 and 6.2, the execution of any instrument by a Securityholder or his agent or
proxy may be proved in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
SECTION 7.3 Holders to Be Treated as Owners. The Company, the
Trustee and any agent of the Company or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security Register
for such Series as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
principal of and (subject to Section 2.7) interest on such Security and for all
other purposes; and neither the Company nor the Trustee nor any agent of the
Company or the Trustee shall be affected by any notice to the contrary. The
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as the absolute
owner of such Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the
Company, the Trustee, nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such
person, or upon his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any such Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all Series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Company or any other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any other obligor on the Securities with respect to which such determination is
being made shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver only Securities which the Trustee knows are 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
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Securities.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all Series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
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Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all Series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and the Holders of
all the Securities affected by such action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Company, when authorized by a resolution of its Board of
Directors, and the Trustee for the Securities of any and all Series may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as in
force at the date of the execution thereof), in form satisfactory to such
Trustee, for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more Series any property or assets;
(b) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Company pursuant to
Article IX;
(c) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of
Securities of any or all Series or of Coupons and, if such additional
covenants are to be for the benefit of less than all the Series of
Securities or Coupons stating that such covenants are being added solely
for the benefit of such Series;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Board of Directors may deem necessary or desirable and
which shall not materially and adversely affect the interests of the
Holders of the Securities or Coupons;
(e) to establish the form or terms of Securities of any Series or of
the Coupons appertaining to such Securities as permitted by Sections 2.1
and 2.3 and to provide for adjustment of conversion rights pursuant to
Section 14.5;
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(f) 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 the one Trustee, pursuant to the
requirements of Section 6.8; or
(g) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Outstanding Security of any Series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee 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.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article VII) of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of each Series affected by such supplemental
indenture (voting as one class), the Company, when authorized by a resolution of
its Board of Directors, and the Trustee for such Series of Securities may, from
time to time and at any time, enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as in
force at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Securities of each such Series or of the Coupons
appertaining to such Securities; provided, however, that no such supplemental
indenture shall (a) extend the Stated Maturity of any Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption thereof, or make the principal thereof (including any amount in
respect of original issue discount), or interest thereon payable in any coin or
currency other than that provided in the Securities and Coupons or in accordance
with the terms thereof, or reduce the amount of the principal of the Original
Issue Discount Security that would be due and payable upon an acceleration of
the Maturity thereof pursuant to Section 5.1 or the amount thereof provable in
bankruptcy pursuant to Section 5.2, or alter the provisions of Section 11.11 or
11.12, or impair or affect the right of any Securityholder to institute suit for
payment thereof or, if the Securities provide therefor, any right of repayment
at the option of the Securityholder without the consent of the Holder of each
Security so affected, (b) reduce the aforesaid percentage of Securities of any
Series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security
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so affected or (c) modify the provisions of Article XIII or Article XIV hereof
in a manner which is materially adverse to the Holders of any Series of
Securities then outstanding.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular Series of Securities, or which modifies
the rights of Holders of Securities of such Series, or of Coupons appertaining
to such Securities, with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other Series or of the Coupons appertaining to such Securities.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors certified by the secretary or an assistant secretary
of the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee for such Series of Securities of evidence of
the consent of Securityholders as aforesaid and other documents, if any,
required by Section 7.1, the Trustee for such Series of Securities shall join
with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects such Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case such Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall give notice thereof (i) to the Holders of then Outstanding Registered
Securities of each Series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security Register, (ii) if any Unregistered Securities of a Series affected
thereby are then Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee, by mailing a notice thereof by first-class mail
to such Holders at such addresses as were so furnished to the Trustee and (iii)
if any Unregistered Securities of a Series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice thereof at least
once in an Authorized Newspaper in the Borough of Manhattan, The City of New
York and at least once in an Authorized Newspaper in London (and, if required by
Section 3.5, at least once in an Authorized Newspaper in Luxembourg), and in
each case such notice shall set forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Every supplemental
indenture executed pursuant to this Article VIII shall conform to the
requirements of the Trust Indenture Act. Upon the execution of any supplemental
indenture pursuant to the provisions hereof, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the Holders of Securities of each
Series affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and
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amendments, and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject
to the provisions of Sections 6.1 and 6.2, shall receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article VIII complies with the
applicable provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any Series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article VIII may bear, upon the direction of the Company, a notation in form
satisfactory to the Trustee for the Securities of such Series as to any matter
provided for by such supplemental indenture. If the Company or the Trustee
shall so determine, new Securities of any Series so modified as to conform, in
the opinion of the Trustee and the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Securities of such Series then Outstanding.
SECTION 8.6 Subordination Unimpaired. This Indenture may not be
amended to alter the subordination of any Outstanding Securities without the
written consent of each holder of Senior Indebtedness then outstanding that
would be materially adversely affected thereby.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, etc., on Certain Terms. The
Company may sell, convey or lease all or substantially all of its assets to any
Person, or consolidate or merge with or into, any other corporation, provided
that in any such case, (i) either the Company shall be the continuing
corporation, or the successor corporation or person which acquires by sale or
conveyance all or substantially all of the assets of the Company shall be a
corporation or other entity organized and validly existing under the laws of the
United States of America or any State thereof or the District of Columbia and
shall expressly assume the due and punctual payment of the principal of and
interest on all the Securities according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Company by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation or entity, and (ii) immediately after such merger or
consolidation, or such sale, conveyance or lease, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing.
SECTION 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect
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as if it had been named herein. Such successor corporation may cause to be
signed, and may issue either in its own name or in the name of the Company prior
to such succession any or all of the Securities issuable hereunder which,
together with any Coupons appertaining thereto, theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such
successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall make available for delivery any Securities, together with
any Coupons appertaining thereto, which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities, together with any Coupons appertaining thereto, which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued, together with any
Coupons appertaining thereto, shall in all respects have the same legal rank and
benefit under this Indenture as the Securities and Coupons theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities and Coupons had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than conveyance by
way of lease) the Company (or any successor corporation which shall theretofore
have become such in the manner described in this Article) shall be discharged
from all obligations and covenants under this Indenture and the Securities and
may be liquidated and dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel,
prepared in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE X
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Company shall have paid or caused to be
paid the principal of and interest on all the Securities of any Series
Outstanding hereunder and all unmatured Coupons appertaining thereto (other than
Securities of such Series and Coupons appertaining thereto which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and payable, or (b) the
Company shall have delivered to the Trustee for cancellation all Securities of
any Series theretofore authenticated and all unmatured Coupons appertaining
thereto (other than any Securities of such Series and
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Coupons appertaining thereto which have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.9) or (c) in the case
of any Series of Securities where the exact amount (including the currency of
payment) of principal of and interest due on such Securities can be determined
at the time of making the deposit referred to in clause (ii) below, (i) all the
Securities of such Series and all unmatured Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and (ii) the Company shall
have irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount (other than moneys repaid by the Trustee or any Paying
Agent to the Company in accordance with Section 10.4) or Government Obligations
maturing as to principal and interest in such amounts and at such times as will
ensure the availability of cash 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 (A) the principal and
interest on all Securities of such Series and Coupons appertaining thereto on
each date that such principal or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of such
Series and if, in any such case, the Company shall also pay or cause to be paid
all other sums payable hereunder by the Company with respect to Securities of
such Series, then this Indenture shall cease to be of further effect with
respect to Securities of such Series (except as to (i) rights of registration of
transfer and exchange, and the Company's right of optional redemption (provided
the Company provides sufficient funds to effect such optional redemption), (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities or
Coupons, (iii) rights of Holders to receive payments of principal thereof and
interest thereon upon the original stated due dates therefor (but not upon
acceleration) and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations and immunities of the
Trustee hereunder, (v) the rights of the Securityholders of such Series and
Coupons appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them and (vi)
rights of Holders to exercise any conversion rights of Securities of any Series
herein expressly provided for)), and, subject to Section 10.5, the Trustee, on
demand of the Company accompanied by an Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Company, shall execute proper
instruments acknowledging such satisfaction of and discharging this Indenture
with respect to such Series; provided, that the rights of Holders of the
Securities and Coupons to receive amounts in respect of principal of and
interest on the Securities and Coupons held by them shall not be delayed longer
than required by then applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. The Company agrees to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this Indenture and the
Securities of such Series.
(B) (i) In addition to the provisions of Section 10.1(A), the
Company may, at its option by or pursuant to, or otherwise in a manner or by
such Persons as may be authorized pursuant to, one or more resolutions duly
adopted by the Board of Directors, at any time with respect to the Securities of
any Series, elect to have defeasance under subsection (ii) of this Section
10.1(B) be applied to the Outstanding Securities of such Series provided that
provision therefor is made for
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such application pursuant to Section 2.3 and the applicable conditions thereto
as set forth in this Section 10.1(B) have been satisfied.
(ii) Upon the Company's exercise of the option referenced in Section
10.1(B)(i) applicable to this subsection, the Company may terminate its
obligations under the Outstanding Securities of any Series and this Indenture
with respect to such Series on the date the conditions set forth below are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such Series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense and request of the Company, shall execute proper instruments
acknowledging the same), except for the following: (1) the rights of Holders of
Outstanding Securities of such Series to receive payments in respect of the
principal of and interest on such Securities when such payments are due, (2) the
Company's obligations with respect to such Securities under Sections 2.8, 2.9,
2.11, 3.2, 6.7, 10.4, 10.5 and, if applicable, Article XIV, (3) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, and (4) this
Section 10.1(B).
(iii) The following shall be the conditions to the application of
Section 10.1(B)(ii) to the Outstanding Securities of such Series:
(a) The Company shall have irrevocably deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.10 who shall agree to comply with the provisions of this
Section and Section 10.1(B) applicable to it) under the terms of an
irrevocable trust agreement, as trust funds in trust solely for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Securities of such
Series, (i) cash in the currency or currency unit required, or (ii)
Government Obligations maturing as to principal and interest in such
amounts (payable in the currency in which the Securities of such Series are
payable) and at such times as are sufficient, to pay the principal of and
interest on the Outstanding Securities of such Series to Maturity or
redemption, as the case may be, 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 other qualifying trustee) to pay and discharge, (x) the
principal of and each installment of principal of and interest, if any, on
the Outstanding Securities of such Series and Coupons appertaining thereto
on the Stated Maturity of such principal or installment of principal or
interest, if any, and (y) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such Series on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities. Such irrevocable trust agreement
shall include, among other things, (i) provision for the payments
referenced in clauses (x) and (y) of the immediately preceding sentence,
(ii) the payment of the reasonable expenses of the Trustee incurred or to
be incurred in connection with carrying out such trust provisions, (iii)
rights of registration, transfer, substitution and exchange of Securities
of such Series in accordance with the terms stated in this Indenture and
(iv) continuation of the
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rights and obligations and immunities of the Trustee as against the Holders
of Securities of such Series as stated in this Indenture.
(b) No Event of Default or event which with notice or lapse of time or
both would constitute an Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit or, insofar as Sections
5.1(d) and 5.1(e) are concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(c) Such deposit or defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by
which it is bound.
(d) The Company shall have delivered to the Trustee an Opinion of
Counsel of recognized national standing to the effect that Securityholders
of such Series will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit and discharge and will be subject
to Federal income tax on the same amounts and in the same manner and at the
same time as would have been the case if such deposit and defeasance had
not occurred.
(e) The Company shall have delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the deposit and defeasance
contemplated by this Section 10.1(B) have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys deposited with the Trustee
pursuant to Section 10.1 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the Holders of the particular Securities of
such Series and of Coupons appertaining thereto for the payment or redemption of
which such moneys have been deposited with the Trustee, of all sums due and to
become due thereon for principal and interest; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any Series, all moneys then held by any Paying Agent (other than the Company)
under the provisions of this Indenture with respect to such Series of Securities
shall, upon demand of the Company, be paid to the Trustee and thereupon such
Paying Agent shall be released from all further liability with respect to such
moneys.
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying
Agent. Any moneys deposited with or paid to the Trustee or any Paying Agent
(including the Company acting as its own Paying Agent) for the payment of the
principal of or interest on any Security of any Series or Coupons attached
thereto and not applied but remaining unclaimed for two years after the
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date upon which such principal or interest shall have become due and payable,
shall, upon the written request of the Company, promptly be repaid to the
Company by the Trustee for such Series or such Paying Agent (except that with
respect to any amounts then held by the Company in trust as its own Paying Agent
no such request need be given and at such time the Company shall be discharged
from its duty to hold such moneys in trust as Paying Agent), and the Holder of
the Securities of such Series and of any Coupon appertaining thereto shall,
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the Company for
any payment which such Holder may be entitled to collect, and all liability of
the Trustee or any Paying Agent with respect to such moneys shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment with respect to moneys deposited with it for
any payment (a) in respect of Registered Securities of any Series, shall at the
expense of the Company, mail by first-class mail to Holders of such Securities
at their addresses as they shall appear on the Security Register, and (b) in
respect of Unregistered Securities of any Series, shall at the expense of the
Company cause to be published once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and once in an Authorized Newspaper in London
(and if required by Section 3.5, once in an Authorized Newspaper in Luxembourg),
notice, that such moneys remain and that, after a date specified therein, which
shall not be less than thirty days from the date of such mailing or publication,
any unclaimed balance of such money then remaining will be repaid to the
Company. Anything in this Article X to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the written
request of the Company any money or Government Obligations held by it as
provided in Section 10.1(B)(iii) which, 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 which would then be required to be deposited to effect such defeasance
or covenant defeasance, as the case may be, in accordance with the provisions of
this Indenture.
SECTION 10.5 Reinstatement of Company's Obligations. If the Trustee
is unable to apply any funds or Government Obligations in accordance with
Section 10.1 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities of any Series for which such application is
prohibited shall be revived and reinstated as if no deposit had occurred
pursuant to Section 10.1 until such time as the Trustee is permitted to apply
all such funds or Government Obligations in accordance with Section 10.1;
provided, however, that if the Company has made any payment of interest on or
principal of any of such Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Securityholders of such Securities to receive such payment from the funds or
Government Obligations held by the Trustee.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement
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contained in this Indenture, in any Security, in any Coupon or because of any
indebtedness evidenced thereby, shall be had against any incorporator, as such
or against any past, present or future stockholder, officer or director, as
such, of the Company or of any successor, either directly or through the Company
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities and the Coupons appertaining thereto by the Holders
thereof and as part of the consideration for the issue of the Securities and the
Coupons appertaining thereto.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities or the
Coupons appertaining thereto, expressed or implied, shall give or be construed
to give to any Person, firm or corporation, other than the parties hereto, any
Paying Agent and their successors hereunder, the holders of Senior Indebtedness
and the Holders of the Securities or Coupons any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of the Securities or
Coupons.
SECTION 11.3 Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 11.4 Notices and Demands on Company, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities or Coupons to or on the Company may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Company is filed by the
Company with the Trustee) to Xxxx Foods Company, 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx
Xxxx, XX 00000, Attention: General Counsel. Any notice, direction, request or
demand by the Company or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders of Registered
Securities of any event such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed by first-class
mail, postage prepaid to such Holders as their names and addresses appear in the
Security Register within the time prescribed. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver. 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, and
any notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given.
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In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Company and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
reasonably acceptable to the Trustee shall be deemed to be a sufficient giving
of such notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition and the
definitions herein relating thereto, (b) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based, (c) a statement that, in the
opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with and (d) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
Any certificate, statement 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 that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information with respect to which is in the possession of
the Company, upon the certificate, statement or opinion of or representations by
an officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same 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 or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
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Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. Unless
otherwise specified in a Security, if the date of Maturity of interest on or
principal of the Securities of any Series or any Coupons appertaining thereto or
the date fixed for redemption or repayment of any such Security or Coupon shall
not be a Business Day, then payment of interest or principal need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date of Maturity or the date fixed for
redemption, and no interest shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required by the Trust Indenture Act, such required provision shall control.
SECTION 11.8 New York Law to Govern. This Indenture and each
Security and any Coupon appertaining thereto shall be deemed to be a contract
under the laws of the State of New York, and for all purposes shall be construed
in accordance with the laws of such State.
SECTION 11.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings; Gender. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof. The use of the masculine, feminine or neuter
gender herein shall not limit in any way the applicability of any term or
provision hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU. Unless
otherwise specified in an Officers' Certificate delivered pursuant to Section
2.3 of this Indenture with respect to a particular Series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of any
Series or all Series affected by a particular action at the time Outstanding
and, at such time, there are Outstanding Securities of any Series which are
denominated in a coin or currency other than Dollars (including ECUs), then the
principal amount of Securities of such Series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 11.11, "Market Exchange Rate" shall mean the noon
Dollar buying rate for that currency for cable transfers quoted in The City of
New York as certified for customs purposes by the Federal Reserve Bank of New
York; provided, however, in the case of ECUs, "Market Exchange Rate" shall mean
the rate of exchange determined by the Commission of the European Communities
(or any successor thereto) as published in the Official Journal of the European
Communities (such publication or any successor publication, the "Journal"). If
such Market Exchange Rate is not available for any reason with respect to such
currency, the Trustee shall use, in its sole discretion and without liability on
its part,
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such quotation of the Federal Reserve Bank of New York or, in the case of ECUs,
the rate of exchange as published in the Journal, as of the most recent
available date, or quotations or, in the case of ECUs, rates of exchange from
one or more major banks in The City of New York or in the country of issue of
the currency in question, which for purposes of the ECU shall be Brussels,
Belgium, or such other quotations or, in the case of ECU, rates of exchange as
the Trustee shall deem appropriate. The provisions of this paragraph shall
apply in determining the equivalent principal amount in respect of Securities of
a Series denominated in a currency other than Dollars in connection with any
action taken by holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and all Holders.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any Series which are redeemable
before their final Maturity or to any sinking fund for the retirement of
Securities of a Series except as otherwise specified as contemplated by Section
2.3 for Securities of such Series.
SECTION 12.2 Election to Redeem; Notice of Redemption; Partial
Redemptions. The election of the Company to redeem any Securities shall be
evidenced by, or pursuant to, a resolution of the Board of Directors. Notice of
redemption to the Holders of Registered Securities of any Series required to be
redeemed or to be redeemed as a whole or in part at the option of the Company
shall be given by giving notice of such redemption as provided in Section 11.4,
at least 30 days and not more than 60 days prior to the date fixed for
redemption to such Holders of Securities of such Series. Notice of redemption
to the Holders of Unregistered Securities to be redeemed as a whole or in part,
who have filed their names and addresses with the Trustee, shall be given by
mailing notice of such redemption, by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption,
to such Holders at such addresses as were so furnished to the Trustee (and, in
the case of any such notice given by the Company, the Trustee shall make such
information available to the Company for such purpose). Notice of redemption to
all other Holders of Unregistered Securities shall be published in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and in an Authorized
Newspaper in London (and, if required by Section 3.5, in an Authorized Newspaper
in Luxembourg), in each case, once in each of three successive calendar weeks,
the first publication to be not less than thirty nor more than sixty days prior
to the date fixed for redemption. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a Series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such Series.
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The notice of redemption to each such Holder shall specify the date
fixed for redemption, the "CUSIP" number or numbers for such Securities, the
redemption price, the Place or Places of Payment, that payment will be made upon
presentation and surrender of such Securities, and, in the case of Securities
with Coupons attached thereto, of all Coupons appertaining thereto maturing
after the date fixed for redemption, that such redemption is pursuant to the
mandatory or optional sinking fund, or both, if such be the case, that interest
accrued to the date fixed for redemption will be paid as specified in such
notice, that on and after said date interest thereon or on the portions thereof
to be redeemed will cease to accrue and, if applicable, that on and after such
date, such Securities shall cease to be convertible into Common Stock. If less
than all of the Securities of any Series are to be redeemed, the notice of
redemption shall specify the numbers of the Securities of such Series to be
redeemed. In case any Security of a Series is to be redeemed in part, the
notice of redemption shall state the portion of the principal amount thereof to
be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of such Series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any Series to be redeemed at
the option 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. If such
notice is to be given by the Trustee, the Company shall provide notice of such
redemption to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee). If
such notice is given by the Company, the Company shall provide a copy of such
notice given to the Holders of such redemption to the Trustee at least 2 days
prior to the date such notice is given to such Holders, but in any event at
least 15 days prior to the date fixed for redemption (unless a shorter notice
shall be satisfactory to the Trustee).
Unless otherwise specified pursuant to Section 2.3, not later than the
redemption date specified in the notice of redemption given as provided in this
Section, the Company will have on deposit with the Trustee or with one or more
Paying Agents (or, if the Company is acting as its own Paying Agent, set aside,
segregate and hold in trust as provided in Section 3.3) in funds available on
such date, an amount of money sufficient to redeem on the redemption date all
the Securities of such Series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. If less than all the Outstanding Securities of a Series are to be
redeemed at the election of the Company, the Company will deliver to the Trustee
at least 60 days prior to the date fixed for redemption an Officers' Certificate
stating the aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a Series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part and the Trustee
shall promptly notify the Company in writing of the Securities of such Series
selected for redemption and, in the case of any Securities of such Series
selected for partial redemption, the principal amount thereof to be redeemed.
However, if less than all the Securities of any Series with differing issue
dates, interest rates and stated maturities are to be redeemed, the Company in
its sole discretion shall select the particular Securities to be redeemed and
shall notify the Trustee in writing thereof at least 45 days prior to the
relevant redemption date.
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Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such Series or any multiple thereof. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any Series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed. If any Security selected for partial redemption is surrendered for
conversion after such selection, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption.
SECTION 12.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void,
and such Securities shall cease from and after the date fixed for redemption
(unless an earlier date has otherwise been established for such Securities) to
be convertible into Common Stock, and, except as provided in Sections 6.1 and
10.4, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a Place of
Payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that, payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with Coupons attached thereto, to the Holders of Coupons
for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on
the relevant record date subject to the terms and provisions of Section 2.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or yield to maturity (in the case of an Original Issue Discount
Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to or on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 30 days prior to the last date on which
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notice of redemption may be given as being owned of record and beneficially by,
and not pledged or hypothecated by, either (a) the Company or (b) an entity
specifically identified in such written statement as directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company.
SECTION 12.5 Mandatory and Optional Sinking Funds. 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". The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Series of Securities in cash, the Company may at its
option (a) deliver to the Trustee Securities of such Series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of such
Series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such Series (not previously so credited)
redeemed by the Company through any optional redemption provision contained in
the terms of such Series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any Series of Securities, the Company will deliver to the Trustee a
written statement (which need not contain the statements required by Section
11.5) signed by an authorized officer of the Company (a) specifying the portion
of the mandatory sinking fund payment to be satisfied by payment of cash (except
as otherwise specified pursuant to Section 2.3 for the Securities of such
Series), and the portion to be satisfied by delivery or credit of Securities of
such Series, (b) stating that none of the Securities of such Series for which
credit is sought has theretofore been so credited, (c) stating that no defaults
in the payment of interest or Events of Default with respect to such Series have
occurred (which have not been waived or cured) and are continuing, (d) stating
whether or not the Company intends to exercise its right to make an optional
sinking fund payment with respect to such Series and, if so, specifying the
amount of such optional sinking fund payment which the Company intends to pay on
or before the next succeeding sinking fund payment date and (e) specifying such
sinking fund payment date. Any Securities of such Series to be credited and
required to be delivered to the Trustee in order for the Company to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to the
Trustee shall be delivered for cancellation pursuant to Section 2.10 to the
Trustee with such written statement. Such written statement shall be
irrevocable and upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Company, on or before any such sixtieth day, to deliver such
written statement and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory
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sinking fund payment for such Series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such Series in respect thereof and (ii) that the Company
will make no optional sinking fund payment with respect to such Series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $100,000 (or the equivalent thereof in any Foreign Currency or ECU or a
lesser sum in Dollars or in any Foreign Currency or ECU if the Company shall so
request) with respect to the Securities of any particular Series, such cash
shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such Series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such amount
shall be $100,000 (or the equivalent thereof in any Foreign Currency or ECU) or
less and the Company makes no such request then it shall be carried over until a
sum in excess of $100,000 (or the equivalent thereof in any Foreign Currency or
ECU), is available. The Trustee shall select, in the manner provided in Section
12.2 and giving effect to any exclusions required pursuant to Section 12.4, for
redemption on such sinking fund payment date a sufficient principal amount of
Securities of such Series to absorb said cash, as nearly as may be possible, and
shall (if requested in writing by the Company) inform the Company of the serial
numbers of the Securities of such Series (or portions thereof) so selected. The
Trustee, in the name and at the expense of the Company (or the Company, if it
shall so notify the Trustee in writing) shall cause notice of redemption of the
Securities of such Series to be given in substantially the manner provided in
Section 12.2 (and with the effect provided in Section 12.3) for the redemption
of Securities of such Series at the option of the Company. The amount of any
sinking fund payments not so applied or allocated to the redemption of
Securities of such Series shall be added to the next cash sinking fund payment
for such Series and, together with such payment, shall be applied in accordance
with the provisions of this Section. Any and all sinking fund moneys held on
the Stated Maturity date of the Securities of any particular Series (or earlier,
if such Maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such Series shall be applied, together
with other moneys, if necessary, sufficient for the purpose, to the payment of
the principal of, and interest on, the Securities of such Series at Maturity.
Unless otherwise specified pursuant to Section 2.3, not later than the
sinking fund payment date, the Company shall have paid to the Trustee in cash or
shall otherwise provide in funds available on such date for the payment of all
principal and interest accrued to the date fixed for redemption on Securities to
be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a Series with sinking fund moneys or mail or publish any notice of redemption of
Securities for such Series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the mailing or publication of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Company a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such Series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
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into the sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article V and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.9 or the default cured on or before the sixtieth
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
SECTION 12.6 Repayment at the Option of the Holders. Securities of
any Series which are repayable at the option of the Holders thereof before their
Stated Maturity shall be repaid in accordance with the terms of the Securities
of such Series.
The repayment of any principal amount of Securities pursuant to such
option of the Holder to require repayment of Securities before their Stated
Maturity, for purposes of Section 10.1, shall not operate as a payment,
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the Company, at its option, shall deliver or surrender the same
to the Trustee with a directive that such Securities be cancelled.
ARTICLE XIII
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness. The
Company covenants and agrees that anything in this Indenture or the Securities
of any Series to the contrary notwithstanding, the indebtedness evidenced by the
Securities of each Series is subordinate and junior in right of payment to all
Senior Indebtedness to the extent provided herein, and each Holder of Securities
of each Series, by his acceptance thereof, whether upon original issue or upon
transfer or assignment thereof, likewise covenants and agrees to the
subordination herein provided and shall be bound by the provisions hereof.
If the Company shall default in the payment of any principal of or
interest on any Senior Indebtedness when the same becomes due and payable,
whether at Maturity or at a date fixed for prepayment or by declaration of
acceleration or otherwise, then, upon written notice of such default to the
Company by the holders of Senior Indebtedness or any trustee therefor, unless
and until such default shall have been cured or waived or shall have ceased to
exist, no direct or indirect payment (in cash, property, securities, by setoff
or otherwise) shall be made or agreed to be made on account of the principal of,
premium, if any, on, or interest on any of the Securities, or in respect of any
redemption, retirement, purchase or other acquisition of any of the Securities
other than those made in capital stock of the Company (or cash in lieu of
fractional shares thereof).
If (a) without the consent of the Company a court having jurisdiction
shall enter an order for relief with respect to the Company under the Bankruptcy
Code or without the consent of the Company a court having jurisdiction shall
enter a judgment, order or decree adjudging the Company a bankrupt or insolvent,
or enter an order for relief for reorganization, arrangement, adjustment or
composition of or in respect of the Company under the Bankruptcy Code or
applicable
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state insolvency law, or (b) the Company shall institute proceedings for entry
of an order for relief with respect to the Company under the Bankruptcy Code or
for an adjudication of insolvency, or shall consent to the institution of
bankruptcy or insolvency proceedings against it, or shall file a petition
seeking, or seek or consent to reorganization, arrangement, composition or
relief under the Bankruptcy Code or any applicable state law, or shall consent
to the filing of such petition or to the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator or similar official (other than a
custodian pursuant to 8 Delaware Code (S)226 or any similar statute under other
state laws) of the Company or of substantially all of its property, or the
Company shall make a general assignment for the benefit of creditors as
recognized under the Bankruptcy Code, then all Senior Indebtedness (including
any interest thereon accruing after the commencement of any such proceedings)
shall first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made to any Holder of any Securities on
account thereof. Any payment or distribution, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Securities, to the payment of
all Senior Indebtedness then outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment) which would
otherwise (but for these subordination provisions) be payable or deliverable in
respect of the Securities of any Series shall be paid or delivered directly to
the holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
have been paid in full. In the event of any such proceeding, after payment in
full of all sums owing with respect to Senior Indebtedness, the Holder of the
Securities, together with the holders of any obligation of the Company ranking
on a parity with the Securities, shall be entitled to be paid from the remaining
assets of the Company the amounts at the time due and owing on account of unpaid
principal of and interest, if any, on the Securities and such other obligations
before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or any obligations of
the Company ranking junior in right of payment to the Securities and such other
obligations.
If, notwithstanding the foregoing, any payment or distribution of any
character, whether in cash, securities or other property (other than securities
of the Company or any other corporation provided for by a plan of reorganization
or readjustment the payment of which is subordinate, at least to the extent
provided in these subordination provisions with respect to the indebtedness
evidenced by the Securities, to the payment of all Senior Indebtedness then
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), shall be received by the Trustee or any
Holder in contravention of any of the terms hereof, such payment or distribution
or security shall be received in trust for the benefit of, and shall be paid
over or delivered and transferred to, the holders of the Senior Indebtedness
then outstanding in accordance with the priorities then existing among such
holders for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay all such Senior Indebtedness in full. In
the event of the failure of the Trustee or any Holder to endorse or assign any
such payment, distribution or security, each holder of Senior Indebtedness is
hereby irrevocably authorized to endorse or assign the same.
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Nothing contained herein shall impair, as between the Company and the
Holders of Securities of each Series, the obligation of the Company to pay to
such Holders the principal of and interest, if any, on such Securities or
prevent the Trustee or the Holder from exercising all rights, powers and
remedies otherwise permitted by applicable law or hereunder upon a default or
Event of Default hereunder, all subject to the rights of the holders of the
Senior Indebtedness to receive cash, securities or other property otherwise
payable or deliverable to the Holders.
Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. Upon
the payment in full of all Senior Indebtedness, the Holders of Securities of
each Series shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payments or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the Securities of such
Series shall have been paid in full, and such payments or distributions received
by such Holders, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall as between the Company and its creditors other than the
holders of Senior Indebtedness, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Company on account of Senior
Indebtedness, and not on account of the Securities of such Series.
The provisions of this Section 13.1 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness. Upon any payment or
distribution of assets of the Company, the Trustee and the Holders shall be
entitled to rely upon an order or decree issued by any court of competent
jurisdiction in which such dissolution or winding up or liquidation or
reorganization or arrangement proceedings are pending or upon a certificate of
the trustee in bankruptcy, receiver, assignee for the benefit of creditors or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders, for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XIII. In the absence of any such bankruptcy trustee, receiver,
assignee or other Person, the Trustee shall be entitled to rely upon a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee or representative on behalf of such holder) as evidence that such
Person is a holder of Senior Indebtedness (or is such a trustee or
representative). If the Trustee determines, in good faith, that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distributions pursuant to
this Article XIII, the Trustee may request such person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held
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by such Person, as to the extent to which such Person is entitled to participate
in such payment or distribution, and as to other facts pertinent to the rights
of such Person under this Article XIII, 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 13.3 Payment Permitted If No Default. Nothing contained in
this Article XIII 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
default in the payment of any principal of or interest on any Senior
Indebtedness as described in Section 13.1 or of any of the events described in
clauses (a) and (b) of Section 13.1, from making payments of the principal of or
interest, if any, on the Securities, or (b) the application by the Trustee or
any Paying Agent of any moneys deposited with it hereunder to payments of the
principal of or interest, if any, on the Securities, if, at the time of such
deposit, the Trustee or such paying agent, as the case may be, did not have the
written notice provided for in Section 13.4 of any event prohibiting the making
of such deposit, or if, at the time of such deposit (whether or not in trust) by
the Company with the Trustee or Paying Agent (other than the Company) such
payment would not have been prohibited by the provisions of this Article XIII,
and the Trustee or any Paying Agent shall not be affected by any notice to the
contrary received by it on or after such date.
SECTION 13.4 Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article XIII or elsewhere in this Indenture to the contrary
notwithstanding, the Trustee shall not at any time be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
money to or by the Trustee and shall be entitled to assume conclusively that no
such facts exist and that no event specified in Section 13.1 has happened, until
the Trustee shall have received an Officers' Certificate to that effect or
notice in writing to that effect signed by or on behalf of the holder or
holders, or their representatives, of Senior Indebtedness who shall have been
certified by the Company or otherwise established to the reasonable satisfaction
of the Trustee to be such holder or holders or representatives or from any
trustee under any indenture pursuant to which such Senior Indebtedness shall be
outstanding; provided, however, that, if the Trustee shall not have received the
Officers' Certificate or notice provided for in this Section 13.4 prior to the
third Business Day preceding the date upon which by the terms hereof any money
becomes payable (including without limitation, the payment of either the
principal of or interest, if any, on any Security), or in the event of the
execution of an instrument pursuant to Section 10.1 acknowledging satisfaction
and discharge of this Indenture, then if prior to the third Business Day
preceding the date of such execution, the Trustee or any Paying Agent shall not
have received with respect to such money the Officers' Certificate or notice
provided for in this Section 13.4, then, anything herein to the contrary
notwithstanding, the Trustee or such Paying Agent shall have full power and
authority to receive such money and apply the same to the purpose for which it
was received and shall not be affected by any notice to the contrary which may
be received by it on or after such date. The Company shall give prompt written
notice to the Trustee and to the Paying Agent of any facts which would prohibit
the payment of money to or by the Trustee or any Paying Agent and the Trustee
shall not be charged with knowledge of the curing of any default or the
elimination of any other fact or condition preventing such payment or
distribution unless and until the Trustee shall have received an Officers'
Certificate to such effect.
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SECTION 13.5 Trustee to Effectuate Subordination. Each Holder of
Securities by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as between such Holder and holders of Senior Indebtedness as
provided in this Article XIII and appoints the Trustee its attorney-in-fact for
any and all such purposes.
SECTION 13.6 Rights of Trustee as Holder of Senior Indebtedness. The
Trustee shall be entitled to all the rights set forth in this Article XIII with
respect to any Senior Indebtedness which may at the time be held by it, to the
same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article XIII shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
SECTION 13.7 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
XIII shall in such case (unless the context shall otherwise require) be
construed as extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if the Paying Agent were named in this
Article XIII in addition to or in place of the Trustee; provided, however, that
Sections 13.4 and 13.6 shall not apply to the Company if it acts as paying
agent.
SECTION 13.8 Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness. No right of any present or
future holders of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with. The
holders of Senior Indebtedness may, at any time or from time to time and in
their absolute discretion, change the manner, place or terms of payment, change
or extend the time of payment of, or renew or alter, any such Senior
Indebtedness, or amend or supplement any instrument pursuant to which any such
Senior Indebtedness is issued or by which it may be secured, or release any
security therefor, or exercise or refrain from exercising any other of their
rights under the Senior Indebtedness, including, without limitation, the waiver
of default thereunder, all without notice to or assent from the Holders of the
Securities or the Trustee and without affecting the obligations of the Company,
the Trustee or the Holders of Securities under this Article XIII.
SECTION 13.9 Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of the Senior Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or distribute money or assets to Securityholders
or the Company. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article XIII and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
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ARTICLE XIV
CONVERSION OF SECURITIES
SECTION 14.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any Series which are
convertible into Common Stock or, if so provided in a resolution of the Board of
Directors, Officers' Certificate or executed supplemental indenture referred to
in Sections 2.1 and 2.3 by or pursuant to which the form and terms of the
Securities of such Series were established, cash in lieu thereof, as provided by
the terms of the Securities of such Series.
SECTION 14.2 Exercise of Conversion Privilege. In order to exercise
the conversion privilege, the Holder of any Security to be converted shall
surrender such Security to the Conversion Agent at any time during usual
business hours at its office or agency maintained for the purpose as provided in
Section 3.2, accompanied by a fully executed written notice, in substantially
the form set forth on the reverse of the Security, that the Holder elects to
convert such Security or a stated portion thereof constituting a multiple of
$1,000 in principal amount, and, if such Security is surrendered for conversion
during the period between the close of business on any record date for such
Security and the opening of business on the related interest payment date and
has not been called for redemption on a redemption date within such period (or
on such interest payment date), accompanied also by payment of an amount equal
to the interest payable on such interest payment date on the portion of the
principal amount of the Security being surrendered for conversion. No interest
shall be payable on any Security called for redemption which is converted
between the record date and the open of business of the next succeeding interest
payment date. Such notice shall also state the name or names (and address) in
which the certificate or certificates for shares of Common Stock shall be issued
(or to whom payment in cash in lieu of Common Stock shall be made). Securities
surrendered for conversion shall (if so required by the Company or the
Conversion Agent) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and the
Conversion Agent duly executed by, the Holder or his or her attorney duly
authorized in writing. As promptly as practicable after the receipt of such
notice and the surrender of such Security as aforesaid, the Company shall,
subject to the provisions of Section 14.7, issue and deliver at such office or
agency to such Holder, or on his or her written order, a certificate or
certificates for the number of full shares of Common Stock issuable on
conversion of such Security in accordance with the provisions of such Security
and cash, as provided in Section 14.3, in respect of any fraction of a share of
Common Stock otherwise issuable upon such conversion or, if so provided in a
resolution of the Board of Directors, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the form and terms of the Securities of such Series were established, cash
in lieu of shares of Common Stock. Such conversion shall be at the Conversion
Price in effect, and shall be deemed to have been effected, immediately prior to
the close of business on the date (herein called the "Date of Conversion") on
which such notice in proper form shall have been received by the Conversion
Agent and such Security shall have been surrendered as aforesaid, and the Person
or Persons in whose name or names any certificate or certificates for shares of
Common Stock shall be issuable, if any, upon such conversion shall be deemed to
have become on the Date of Conversion the holder or holders of record of the
shares represented thereby; provided, however, that any such surrender
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on any date when the stock transfer books of the Company shall be closed shall
constitute the Person or Persons in whose name or names the certificate or
certificates for such shares are to be issued, if any, as the recordholder or
holders thereof for all purposes at the opening of business on the next
succeeding day on which such stock transfer books are open but such conversion
shall nevertheless be at the Conversion Price in effect at the close of business
on the date when such Security shall have been so surrendered with the
conversion notice in proper form. In the case of conversion of a portion, but
less than all, of a Security, the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder thereof, at the
expense of the Company, a Security or Securities in the aggregate principal
amount of the unconverted portion of the Security surrendered. Except as
otherwise expressly provided in this Indenture, no payment or adjustment shall
be made for interest accrued on any Security (or portion thereof) converted or
for dividends or distributions on any Common Stock issued upon conversion of any
Security. The right, if any, of a Holder of any Security to cause the Company
to redeem, purchase or repay such Security shall terminate upon receipt by the
Company of any notice of conversion of such Security.
SECTION 14.3 Fractional Interests. No fractions of shares or scrip
representing fractions of shares of Common Stock shall be issued upon conversion
of Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities so surrendered. If any fraction of a share
of Common Stock would, except for the provisions of this Section 14.3, be
issuable on the conversion of any Security or Securities, the Company shall make
payment in lieu thereof in cash equal to the value of such fraction computed on
the basis of the Last Sale Price of one share of Common Stock on the most recent
Trading Day prior to the Date of Conversion. "Last Sale Price" on any Trading
Day shall mean (i) the closing price regular way (or, if no closing price is
reported the average of the bid and asked prices) as reported on the New York
Stock Exchange Composite Tape, or (ii) if on such Trading Day the Common Stock
is not listed or admitted to trading on such exchange, the closing price regular
way (or, if no closing price is reported the average of the bid and asked
prices) on the principal national securities exchange on which the Common Stock
is listed or admitted to trading, or (iii) if not listed or admitted to trading
on any national securities exchange on such Trading Day, then the average of the
closing bid and asked prices as reported through the National Association of
Securities Dealers, Inc. on its NASDAQ National Market System or NASDAQ System
or a similar organization if NASDAQ is no longer reporting information, or (iv)
if the Common Stock is not listed or admitted to trading on any national
securities exchange or quoted on such National Market System or NASDAQ System on
such Trading Day, then the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose or (v) if not quoted
by any such organization on such Trading Day, the fair value of such Common
Stock on such Trading Day, as determined by the Board of Directors. The term
"Trading Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday,
other than any day on which securities are not traded on the applicable above
mentioned exchanges or in such markets.
SECTION 14.4 Adjustment of Conversion Price. The conversion price
(herein called the "Conversion Price") for a Series of Securities shall be as
set forth in a resolution of the Board of Directors, Officers' Certificate or
executed supplemental indenture referred to in Sections
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2.1 and 2.3 by or pursuant to which the form and terms of the Securities of such
Series were established, and shall be subject to adjustment from time to time as
follows:
(a) In case the Company shall (1) pay a dividend or make a
distribution in shares of Common Stock on the Common Stock, (2) subdivide
its outstanding shares of Common Stock into a greater number of shares, (3)
combine its outstanding shares of Common Stock into a smaller number of
shares or (4) issue by reclassification of its Common Stock any shares of
capital stock of the Company, the Conversion Price in effect immediately
prior to such action shall be adjusted so that the Holder of any Security
thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock or other capital stock of the Company
which he or she would have owned immediately following such action had such
Security been converted immediately prior thereto. An adjustment made
pursuant to this subsection (a) shall become effective immediately, except
as provided in subsection (e) below, after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or
reclassification. If as a result of an adjustment made pursuant to this
subsection (a), the Holder of any Security thereafter surrendered for
conversion shall become entitled to receive shares of two or more classes
of capital stock (including shares of Common Stock and other capital stock)
of the Company, the Board of Directors (whose determination shall be
conclusive and shall be described in a statement filed with the Trustee)
shall determine the allocation of the adjusted Conversion Price between or
among shares of such classes of capital stock or shares of Common Stock and
other capital stock.
(b) In case the Company shall issue rights or warrants to all holders
of Common Stock entitling them (for a period not exceeding 45 days from the
date of such issuance) to subscribe for or purchase shares of Common Stock
at a price per share less than the current market price per share (as
determined pursuant to subsection (d) below) of the Common Stock on the
record date mentioned below, the Conversion Price shall be adjusted to a
price, computed to the nearest cent, so that the same shall equal the price
determined by multiplying:
(1) the Conversion Price in effect immediately prior to the date
of issuance of such rights or warrants by
(2) a fraction, of which (i) the numerator shall be (A) the
number of shares of Common Stock outstanding on the date of issuance
of such rights or warrants, immediately prior to such issuance, plus
(B) the number of shares which the aggregate offering price of the
total number of shares so offered for subscription or purchase would
purchase at such current market price (determined by multiplying such
total number of shares by the exercise price of such rights or
warrants and dividing the product so obtained by such current market
price), and of which (ii) the denominator shall be (A) the number of
shares of Common Stock outstanding on the date of issuance of such
rights or warrants, immediately prior to such issuance, plus (B) the
number of additional shares of Common Stock which are so offered for
subscription or purchase.
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Such adjustment shall become effective immediately, except as provided in
subsection (e) below, after the record date for the determination of holders
entitled to receive such rights or warrants.
(c) In case the Company shall distribute to substantially all holders
of Common Stock, evidences of indebtedness, equity securities other than
Common Stock, or other assets (other than cash dividends paid out of
surplus of the Company), or shall distribute to substantially all holders
of Common Stock rights or warrants to subscribe for securities (other than
those referred to in subsection (b) above) then in each such case the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior
to the date of such distribution by a fraction of which the numerator shall
be the current market price per share (determined as provided in subsection
(d) below) of the Common Stock on the record date mentioned below less the
then fair market value (as determined by the Board of Directors, whose
determination shall, if made in good faith, be conclusive evidence of such
fair market value) of the portion of the assets so distributed or of such
subscription rights or warrants applicable to one share of Common Stock,
and of which the denominator shall be such current market price per share
of the Common Stock. Such adjustment shall become effective immediately,
except as provided in subsection (e) below, after the record date for the
determination of stockholders entitled to receive such distribution.
(d) For the purpose of any computation under subsections (b) and (c)
above, the current market price per share of Common Stock on any date shall
be deemed to be the average of the Last Sale Prices for the 30 consecutive
Trading Days commencing 45 Trading Days before the date in question.
(e) In any case in which this Section 14.4 shall require that an
adjustment be made immediately following a record date, the Company may
elect to defer the effectiveness of such adjustment (but in no event until
a date later than the effective time of the event giving rise to such
adjustment), in which case the Company shall, with respect to any Security
converted after such record date and before such adjustment shall have
become effective, (i) defer paying any cash payment pursuant to Section
14.3 or issuing to the Holder of such Security the number of shares of
Common Stock and other capital stock of the Company issuable upon such
conversion in excess of the number of shares of Common Stock and other
capital stock of the Company issuable thereupon only on the basis of the
Conversion Price prior to adjustment and (ii), not later than five Business
Days after such adjustment shall have become effective, pay to such Holder
the appropriate cash payment pursuant to Section 14.3 and issue to such
Holder the additional shares of Common Stock and other capital stock of the
Company issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% of the
Conversion Price; provided, that any adjustments which by reason of this
subsection (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment and, provided further, that
adjustment shall be required and made in accordance with the provisions of
this Article XIV (other than this subsection (f)) not later than such time
as may
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be required in order to preserve the tax-free nature of a distribution to
the holders of Securities or Common Stock. All calculations under this
Article XIV shall be made to the nearest cent or to the nearest one-
hundredth of a share, as the case may be.
(g) Anything in this Section 14.4 to the contrary notwithstanding, no
adjustment need be made for rights to purchase Common Stock pursuant to a
Company plan for reinvestment of dividends or interest or for rights to
purchase capital stock pursuant to any future dividend or distribution
which the Company determines to be comparable in purpose and in effect to
the dividend and subsequent distribution of Rights or Additional Rights
contemplated by the Rights Agreement or Additional Rights Agreement and no
adjustment need be made for a change in the par value or no par value of
the Common Stock.
(h) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly (i) file with the Trustee and each Conversion Agent
an Officers' Certificate setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment, and (ii) mail or cause to be mailed a
notice of such adjustment to each Holder of Securities at his address as
the same appears on either the registry books of the Company or in the
filings described in Section 4.1.
Anything in this Section 14.4 to the contrary notwithstanding, the Company shall
be entitled to make such reductions in the Conversion Price, in addition to
those required by this Section 14.4, as it in its discretion shall determine to
be advisable in order that any stock dividend, subdivision of shares,
distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by the
Company to its stockholders shall not be taxable.
SECTION 14.5 Continuation of Conversion Privilege in Case of Merger,
Consolidation or Sale of Assets. If any of the following shall occur, namely:
(a) any consolidation or merger of the Company as a result of which the holders
of Common Stock shall be entitled to receive stock, other securities or other
assets (including cash) with respect to or in exchange for Common Stock; or (b)
sale or conveyance of all or substantially all of the property or business of
the Company as an entirety, then the Company, or such successor or purchasing
corporation, as the case may be, shall, as a condition precedent to such
consolidation, merger, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture (which shall conform to the Trust Indenture Act of 1939
as in force at the date of the execution thereof) providing that the Holder of
each convertible Security then Outstanding shall have the right to convert such
Security into the kind and amount of shares of stock and other securities and
property (including cash) receivable upon such consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock issuable upon
conversion of such Security immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article XIV. If, in the
case of any such consolidation, merger, sale or conveyance, the stock or other
securities and property (including cash) receivable thereupon by a holder of
shares of Common Stock includes shares of stock or other securities and property
(including cash) of a corporation other than the successor or purchasing
corporation, as the case may be, in such
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consolidation, merger, sale or conveyance, then such supplemental indenture
shall also be executed by such other corporation and shall contain such
additional provisions to protect the interests of the Holders of the Securities
as the Board of Directors shall reasonably consider necessary by reason of the
foregoing. The provisions of this Section 14.5 shall similarly apply to
successive consolidations, mergers, sales or conveyances.
Notice of the execution of each such supplemental indenture shall be
mailed to each Holder of Securities at his or her address as the same appears on
the registry books of the Company.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders of
Securities upon the conversion of their Securities after any such consolidation,
merger, sale or conveyance or to any adjustment to be made with respect thereto,
but, subject to the provisions of Sections 6.1 and 6.2, may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers' Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.
SECTION 14.6 Notice of Certain Events. If:
(a) the Company shall declare a dividend (or any other distribution)
payable to the holders of Common Stock otherwise than in cash; or
(b) the Company shall authorize the granting to the holders of Common
Stock of rights to subscribe for or purchase any shares of stock of any
class or of any other rights; or
(c) the Company shall authorize any reclassification or change of the
Common Stock (other than a subdivision or combination of its outstanding
shares of Common Stock), or any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the
Company is required, or the sale or conveyance of all or substantially all
of the property or business of the Company; or
(d) there shall be authorized or ordered any voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
then, the Company shall cause to be filed at the office or agency maintained for
the purpose of conversion of the Securities as provided in Section 3.2, and
shall cause to be mailed to each Holder of Securities, at his or her address as
it shall appear on the registry books of the Company, at least 20 days before
the date hereinafter specified (or the earlier of the dates hereinafter
specified, in the event that more than one date is specified), a notice stating
the date on which (1) a record is expected to be taken for the purpose of such
dividend, distribution or rights, 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 or rights are to be determined, or (2) such reclassification,
change, consolidation,
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merger, sale, conveyance, dissolution, liquidation or winding-up is expected to
become effective and the date, if any is to be fixed, 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 or other property deliverable upon such
reclassification, change, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding-up.
SECTION 14.7 Taxes on Conversion. The Company will pay any and all
documentary, stamp or similar taxes payable to the United States of America or
any political subdivision or taxing authority thereof or therein in respect of
the issue or delivery of shares of Common Stock on conversion of Securities
pursuant thereto; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issue or delivery of shares of Common Stock in a name other than that of the
Holder of the Securities to be converted (or payment of cash in lieu thereof to
a Person other than such Holder) and no such issue or delivery (or payment)
shall be made unless and until the Person requesting such issue or delivery (or
payment) 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. The Company
extends no protection with respect to any other taxes imposed in connection with
conversion of Securities.
SECTION 14.8 Company to Provide Stock. The Company shall reserve,
free from preemptive rights, out of its authorized but unissued shares,
sufficient shares to provide for the conversion of convertible Securities from
time to time as such Securities are presented for conversion, provided, however,
that nothing contained herein shall be construed to preclude the Company from
satisfying its obligations in respect of the conversion of Securities by
delivery of repurchased shares of Common Stock which are held in the treasury of
the Company.
If any shares of Common Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any Federal or state law before such shares may be
validly issued or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be; provided, however, that nothing in
this Section 14.8 shall be deemed to affect in any way the obligations of the
Company to convert Securities into Common Stock as provided in this Article XIV.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, the
Company will take all corporate action which may, in the opinion of Counsel, be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and non-
assessable by the Company and free of preemptive rights.
SECTION 14.9 Disclaimer of Responsibility for Certain Matters.
Neither the Trustee, the Conversion Agent nor any agent of either shall at any
time be under any duty or
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responsibility to any Holder of Securities to determine whether any facts exist
which may require any adjustment of the Conversion Price, or with respect to the
Officers' Certificate referred to in Section 14.4(h), or with respect to the
nature or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee, the Conversion Agent nor any agent of
either shall be accountable with respect to the validity or value (or the kind
or amount) of any shares of Common Stock, or of any securities or property
(including cash), which may at any time be issued or delivered upon the
conversion of any Security; and neither the Trustee, the Conversion Agent nor
any agent of either makes any representation with respect thereto. Neither the
Trustee, the Conversion Agent nor any agent of either shall be responsible for
any failure of the Company to issue, register the transfer of or deliver any
shares of Common Stock or stock certificates or other securities or property
(including cash) upon the surrender of any Security for the purpose of
conversion or, subject to Sections 6.1 and 6.2, to comply with any of the
covenants of the Company contained in this Article XIV.
SECTION 14.10 Return of Funds Deposited for Redemption of Converted
Securities. Any funds which at any time shall have been deposited by the
Company or on its behalf with the Trustee or any Paying Agent for the purpose of
paying the principal of and interest, if any, on any of the Securities and which
shall not be required for such purposes because of the conversion of such
Securities, as provided in this Article XIV, shall after such conversion be
repaid to the Company by the Trustee or such Paying Agent.
SECTION 14.11 Rights Issued in Respect of Common Stock Issued Upon
Conversion. Each share of Common Stock issued upon conversion of Securities
pursuant to this Article XIV shall be entitled to receive the appropriate number
of preferred share purchase rights (the "Rights"), if any, and the certificates
representing the Common Stock issued upon such conversion shall bear such
legends, if any, in each case as provided by and subject to the terms of the
Rights Agreement dated as of July 28, 1988, between the Company and Xxxxxx Trust
and Savings Bank, as Rights Agent (the "Rights Agreement"), as in effect at the
time of such conversion. In the event that the Company distributes any other
rights ("Additional Rights") pro rata to holders of Common Stock which the
Company determines to be comparable in purpose and in effect to the Rights, each
share of Common Stock issued upon conversion of Securities pursuant to this
Article XIV shall be entitled to receive the appropriate number of Additional
Rights, if any, and the certificates representing the Common Stock issued upon
such conversion shall bear such legends, if any, in each case as provided by and
subject to the terms of any rights agreement or similar agreement pursuant to
which the Additional Rights were issued ("Additional Rights Agreement"), as in
effect at the time of such conversion. Notwithstanding anything else to the
contrary in this Article XIV, there shall not be any adjustment to the
conversion privilege or conversion rate as a result of (i) the distribution of
separate certificates representing the Rights or Additional Rights, (ii) the
occurrence of certain events entitling holders of Rights or Additional Rights to
receive, upon exercise thereof, Common Stock of the Company or capital stock of
another corporation or (iii) the exercise of such Rights or Additional Rights in
accordance with the Rights Agreement or Additional Rights Agreement.
* * * * *
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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 hereto affixed and
attested, all as of the day and year first above written.
XXXX FOODS COMPANY
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
ATTEST:
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
[CORPORATE SEAL]
as Trustee
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
ATTEST:
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
[CORPORATE SEAL]
--------------------------------------
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