Exhibit 4.2
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INTERMAGNETICS GENERAL CORPORATION
the Subsidiary Guarantors named herein
and
JPMORGAN CHASE BANK, N.A.
Trustee
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INDENTURE
Dated as of __________ __, 2006
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Subordinated Securities
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION....................................1
Section 1.01 Definitions.......................................................................1
Section 1.02 Compliance Certificates and Opinions..............................................9
Section 1.03 Form of Documents Delivered to Trustee............................................9
Section 1.04 Acts of Holders; Record Dates....................................................10
Section 1.05 Notices, Etc., to Trustee, Company and Subsidiary Guarantors.....................12
Section 1.06 Notice to Holders; Waiver........................................................12
Section 1.07 Conflict with Trust Indenture Act................................................13
Section 1.08 Effect of Headings and Table of Contents.........................................13
Section 1.09 Successors and Assigns...........................................................13
Section 1.10 Separability Clause..............................................................13
Section 1.11 Benefits of Indenture............................................................14
Section 1.12 Governing Law....................................................................14
Section 1.13 Legal Holidays...................................................................14
ARTICLE II SECURITY AND SUBSIDIARY GUARANTEE FORMS...................................................14
Section 2.01 Forms Generally..................................................................14
Section 2.02 Form of Face of Security.........................................................15
Section 2.03 Form of Reverse of Security......................................................16
Section 2.04 Form of Legend for Global Securities.............................................22
Section 2.05 Form of Trustee's Certificate of Authentication..................................23
Section 2.06 Form of Guarantee................................................................23
ARTICLE III THE SECURITIES............................................................................26
Section 3.01 Amount Unlimited; Issuable in Series.............................................26
Section 3.02 Denominations....................................................................28
Section 3.03 Execution, Authentication, Delivery and Dating...................................29
Section 3.04 Temporary Securities.............................................................30
Section 3.05 Registration, Registration of Transfer and Exchange..............................31
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.................................32
Section 3.07 Payment of Interest; Interest Rights Preserved...................................33
Section 3.08 Persons Deemed Owners............................................................34
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Section 3.09 Cancellation.....................................................................34
Section 3.10 Computation of Interest..........................................................35
Section 3.11 CUSIP Numbers....................................................................35
ARTICLE IV SATISFACTION AND DISCHARGE................................................................35
Section 4.01 Satisfaction and Discharge of Indenture..........................................35
Section 4.02 Application of Trust Money.......................................................36
ARTICLE V REMEDIES..................................................................................36
Section 5.01 Events of Default................................................................36
Section 5.02 Acceleration of Maturity; Rescission and Annulment...............................38
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee..................39
Section 5.04 Trustee May File Proofs of Claim.................................................40
Section 5.05 Trustee May Enforce Claims Without Possession of Securities......................41
Section 5.06 Application of Money Collected...................................................41
Section 5.07 Limitation on Suits..............................................................41
Section 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest
and to Convert...................................................................42
Section 5.09 Restoration of Rights and Remedies...............................................42
Section 5.10 Rights and Remedies Cumulative...................................................42
Section 5.11 Delay or Omission Not Waiver.....................................................43
Section 5.12 Control by Holders...............................................................43
Section 5.13 Waiver of Past Defaults..........................................................43
Section 5.14 Undertaking for Costs............................................................44
Section 5.15 Waiver of Usury, Stay or Extension Laws..........................................44
ARTICLE VI THE TRUSTEE...............................................................................44
Section 6.01 Duties of Trustee................................................................44
Section 6.02 Rights of Trustee................................................................45
Section 6.03 Individual Rights of Trustee.....................................................47
Section 6.04 Trustee's Disclaimer.............................................................47
Section 6.05 Notice of Default................................................................47
Section 6.06 Reports by Trustee to Holders....................................................47
Section 6.07 Compensation and Indemnity.......................................................47
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Section 6.08 Replacement of Trustee...........................................................48
Section 6.09 Successor Trustee by Merger, Etc.................................................49
Section 6.10 Eligibility; Disqualification....................................................50
Section 6.11 Preferential Collection of Claims against Company................................50
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.........................................50
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders........................50
Section 7.02 Preservation of Information; Communications to Holders...........................50
Section 7.03 Reports by Trustee...............................................................51
Section 7.04 Reports by Company...............................................................51
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE......................................51
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms.............................51
Section 8.02 Mergers, Consolidations and Certain Sales of Assets by Subsidiary
Guarantors.......................................................................52
Section 8.03 Successor Corporation Substituted................................................53
ARTICLE IX SUPPLEMENTAL INDENTURES...................................................................53
Section 9.01 Supplemental Indentures Without Consent of Holders...............................53
Section 9.02 Supplemental Indentures with Consent of Holders..................................55
Section 9.03 Execution of Supplemental Indentures.............................................56
Section 9.04 Effect of Supplemental Indentures................................................56
Section 9.05 Conformity with Trust Indenture Act..............................................56
Section 9.06 Reference in Securities to Supplemental Indentures...............................57
ARTICLE X COVENANTS.................................................................................57
Section 10.01 Payment of Securities............................................................57
Section 10.02 Maintenance of Office or Agency..................................................57
Section 10.03 Money for Securities Payments to Be Held in Trust................................58
Section 10.04 Corporate Existence..............................................................59
Section 10.05 Payment of Taxes and Other Claims................................................59
Section 10.06 Compliance Certificate; Notice of Default........................................59
ARTICLE XI REDEMPTION OF SECURITIES..................................................................60
Section 11.01 Applicability of Article.........................................................60
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Section 11.02 Election to Redeem; Notice to Trustee............................................60
Section 11.03 Selection by Trustee of Securities to Be Redeemed................................60
Section 11.04 Notice of Redemption.............................................................61
Section 11.05 Deposit of Redemption Price......................................................62
Section 11.06 Securities Payable on Redemption Date............................................62
Section 11.07 Securities Redeemed in Part......................................................62
ARTICLE XII SINKING FUNDS.............................................................................63
Section 12.01 Applicability of Article.........................................................63
Section 12.02 Satisfaction of Sinking Fund Payments with Securities............................63
Section 12.03 Redemption of Securities for Sinking Fund........................................63
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE........................................................64
Section 13.01 Company's Option to Effect Defeasance or Covenant Defeasance.....................64
Section 13.02 Defeasance and Discharge.........................................................64
Section 13.03 Covenant Defeasance..............................................................65
Section 13.04 Conditions to Defeasance or Covenant Defeasance..................................65
Section 13.05 Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions...................................................67
Section 13.06 Reinstatement....................................................................67
ARTICLE XIV SUBSIDIARY GUARANTEE......................................................................68
Section 14.01 Subsidiary Guarantee.............................................................68
Section 14.02 Execution and Delivery of Subsidiary Guarantees..................................70
Section 14.03 Subsidiary Guarantors May Consolidate, Etc., on Certain Terms....................70
Section 14.04 Release of Subsidiary Guarantors.................................................70
Section 14.05 Additional Subsidiary Guarantors.................................................71
ARTICLE XV CONVERSION OF SECURITIES..................................................................71
Section 15.01 Applicability; Conversion Privilege and Conversion Price.........................71
Section 15.02 Exercise of Conversion Price.....................................................72
Section 15.03 Fractions of Shares..............................................................73
Section 15.04 Adjustment of Conversion Price...................................................73
Section 15.05 Notice of Adjustments of Conversion Price........................................76
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Section 15.06 Notice of Certain Corporate Action...............................................76
Section 15.07 Company to Reserve Common Stock..................................................77
Section 15.08 Taxes on Conversions.............................................................77
Section 15.09 Covenant as to Common Stock......................................................77
Section 15.10 Cancellation of Converted Securities.............................................77
Section 15.11 Provisions in Case of Consolidation, Merger or Sale of Assets....................78
Section 15.12 Responsibility of Trustee........................................................78
ARTICLE XVI SUBORDINATION OF SECURITIES...............................................................79
Section 16.01 Securities Subordinate to Senior Indebtedness....................................79
Section 16.02 Payment Over of Proceeds Upon Dissolution, Etc...................................79
Section 16.03 Prior Payment to Senior Indebtedness Upon Acceleration of Securities.............80
Section 16.04 No Payment When Senior Indebtedness in Default...................................80
Section 16.05 Payment Permitted If No Default..................................................81
Section 16.06 Subrogation to Rights of Holders of Senior Indebtedness..........................81
Section 16.07 Provisions Solely to Define Relative Rights......................................82
Section 16.08 Trustee to Effectuate Subordination..............................................82
Section 16.09 No Waiver of Subordination Provisions............................................82
Section 16.10 Notice to Trustee................................................................83
Section 16.11 Reliance on Judicial Order or Certificate of Liquidating Agent...................83
Section 16.12 Trustee Not Fiduciary for Holders of Senior Indebtedness.........................84
Section 16.13 Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustee's Rights.................................................................84
Section 16.14 Article Applicable to Paying Agents..............................................84
Section 16.15 Certain Conversions Deemed Payment...............................................84
Section 16.16 Trust Moneys Not Subordinated....................................................85
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INDENTURE, dated as of __________ __, 2006, among
Intermagnetics General Corporation, a Delaware corporation (herein called the
"Company"), having its principal office at 000 Xxx Xxxxxxxxx Xxxx, Xxxxxx, Xxx
Xxxx, 00000, each of the Subsidiary Guarantors named herein and JPMorgan Chase
Bank, N.A., a national banking association, as trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY AND SUBSIDIARY GUARANTORS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
The Company, directly or indirectly, owns beneficially all or
substantially all of the Capital Stock of the entities set forth on the
signature page attached hereto (the "Subsidiary Guarantors"); the Company and
the Subsidiary Guarantors are members of the same consolidated group of
companies and are engaged in related businesses; the Subsidiary Guarantors will
derive direct and indirect economic benefits from the issuance of the
Securities; accordingly, each of the Subsidiary Guarantors has duly authorized
the execution and delivery of this Indenture to provide for the Subsidiary
Guarantee (as hereinafter defined) by each of them with respect to the
Securities as set forth in this Indenture.
All things necessary to make this Indenture a valid and
legally binding agreement of the Company and the Subsidiary Guarantors, in
accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01 Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted at the date
of such computation;
(4) the words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture;
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision; and
(6) certain terms used principally in Articles VI, X, XIII and
XIV, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or law for the relief of debtors.
"Board of Directors" means, with respect to the Company or a
Subsidiary Guarantor, either the board of directors of such Person or any duly
authorized committee of that board.
"Board Resolution" means, with respect to the Company or a
Subsidiary Guarantor, a copy of a resolution certified by the Secretary or an
Assistant Secretary of such Person to have been duly adopted by its Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
2
"Capital Lease Obligation" means, at any time any
determination thereof is made, the amount of the liability in respect of a
capital lease that would at such time be so required to be capitalized on the
balance sheet in accordance with generally accepted accounting principles.
"Capital Stock", as applied to the stock of any corporation,
means the capital stock of every class whether now or hereafter authorized,
regardless of whether such capital stock shall be limited to a fixed sum or
percentage with respect to the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission,
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" includes any stock of any class of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding-up of
the Company and which is not subject to redemption by the Company. However,
subject to the provisions of Section 3.01(19) and (21) and Section 15.11, shares
issuable on conversion of Securities shall include only shares of the class
designated as Common Stock of the Company at the date of this instrument or
shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which are not subject to redemption
by the Company; provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, a Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee in at which at any particular time its corporate trust business shall be
administered, which office as of the date hereof is located at 0 Xxx Xxxx Xxxxx,
00xx Xxxxx, Xxx Xxxx, XX, 00000.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section
14.03.
"Defaulted Interest" has the meaning specified in Section
3.07.
3
"Defeasance" has the meaning specified in Section 14.02.
"Defeasible Series" has the meaning specified in Section
14.01.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 3.01.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any statute successor thereto.
"GAAP" means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Standards Board or in such other statements by
such other entity as have been approved by a significant segment of the
accounting profession.
"Global Security" means a Security that evidences all or part
of the Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities or a nominee
thereof.
"Guarantee" or "guarantee" by any Person means any obligation,
contingent or otherwise, of such Person guaranteeing any Indebtedness of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including, without limitation, any obligation of such Person,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Indebtedness, (ii) to purchase
property, securities or services for the purpose of assuring the holder of such
Indebtedness of the payment of such Indebtedness, or (iii) to maintain working
capital, equity capital or other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such Indebtedness
(and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guarantee by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Guarantor Senior Indebtedness" has the meaning specified in
Section 16.09.
"Hedging Obligations" means, with respect to any Person, the
Obligations of such Person under interest rate swap agreements, interest rate
cap agreements, and interest rate collar agreements, and other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
4
"Indebtedness" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in respect of borrowed
money or evidenced by bonds, notes, debentures or similar instruments or letters
of credit (or reimbursement agreements in respect thereof) or representing
Capital Lease Obligations or the balance deferred and unpaid of the purchase
price of any property or representing any Hedging Obligations except any such
balance that constitutes an accrued expense or trade payable, and all deferrals,
renewals, extensions and refundings of obligations of any of the foregoing, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, and also includes, to the
extent not otherwise included, the Guarantee of any indebtedness of such Person
or any other Person.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.01.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means any mortgage, lien, pledge, charge, security
interest, or other encumbrance of any kind, whether or not filed, recorded or
otherwise perfected under applicable law.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 5.01(5).
"Obligations" means any principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the Chief Executive
Officer, the President or a Vice President, the Chief Financial Officer, the
Treasurer or an Assistant Treasurer, of the Company or of a Subsidiary
Guarantor, and delivered to the Trustee.
5
"Opinion of Counsel" means, as to the Company or a Subsidiary
Guarantor, a written opinion of counsel, who may be counsel for the Company or
such Subsidiary Guarantor.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or any Subsidiary Guarantor) in
trust or set aside and segregated in trust by the Company or a
Subsidiary Guarantor (if the Company or such Subsidiary Guarantor shall
act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 14.02; and
(4) Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
protected purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof to such date pursuant to Section 5.02, (B) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined in the manner provided as contemplated
by Section 3.01 on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in Clause (A) above) of such Security, and (C)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
6
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, 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 any premium
and interest on the Securities of that series are payable, as specified pursuant
to Section 3.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Prospectus" means the Prospectus of the Company dated
____________, 2006 relating to the offering from time to time of the Securities.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee who shall have direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.05.
7
"Senior Indebtedness" means the principal of (and premium, if
any), accrued interest (including interest accruing on or after the filing in
bankruptcy or reorganization relating to the Company or a Subsidiary Guarantor
whether or not a claim for post-filing interest is allowed in such proceedings),
fees, charges, expenses, reimbursement obligations, guarantees and other amounts
owing with respect to all Indebtedness of the Company and the Subsidiary
Guarantors (including Indebtedness of others guaranteed by the Company) other
than the Securities and the Subsidiary Guarantees, in any such case whether
outstanding on the date of this Indenture or the date Securities of any series
are issued hereunder or thereafter created, incurred or assumed, unless in any
case in the instrument creating or evidencing any such Indebtedness or
obligation or pursuant to which the same is outstanding it is provided that such
Indebtedness or obligation is not superior in right of payment to the Securities
and the Subsidiary Guarantees, or it is provided that such obligation is
subordinated to senior indebtedness to substantially the same extent as the
Securities and the Subsidiary Guarantees, are subordinated to Senior
Indebtedness.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Subsidiary Guarantees" means, with respect to the Securities
of any series, the guarantees with respect to the Securities of such Series by a
Subsidiary Guarantor pursuant to Article XIV hereof or a supplemental indenture
hereto.
"Subsidiary Guarantor" means, with respect to the Securities
of any series, any Subsidiary of the Company that provides a Subsidiary
Guarantee with respect to the Securities of such series in this Indenture or
pursuant to a supplemental indenture hereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
8
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean each Trustee with respect to
Securities of that series.
"U.S. Government Obligation" has the meaning specified in
Section 14.04.
"Vice President", when used with respect to the Company, a
Subsidiary Guarantor or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president".
Section 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company or by a
Subsidiary Guarantor to the Trustee to take any action under any provision of
this Indenture, the Company or the Subsidiary Guarantor shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officer's Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
provided for in Section 10.05) shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
9
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or any subsidiary of
the Company stating that the information with respect to such factual matters is
in the possession of the Company or any subsidiary of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.04 Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
10
The Company may, in the circumstances permitted by the Trust
Indenture Act, set any day as the record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given or taken by Holders
of Securities of such series. With regard to any record date set pursuant to
this paragraph, the Holders of Outstanding Securities of the relevant series on
such record date (or their duly appointed agents), and only such Persons, shall
be entitled to give or take the relevant action, whether or not such Holders
remain Holders after such record date. With regard to any action that may be
given or taken hereunder only by Holders of a requisite principal amount of
Outstanding Securities of any series (or their duly appointed agents) and for
which a record date is set pursuant to this paragraph, the Company may, at its
option, set an expiration date after which no such action purported to be given
or taken by any Holder shall be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set pursuant to this
paragraph, the Company may, on one or more occasions at its option, extend such
date to any later date. Nothing in this paragraph shall prevent any Holder (or
any duly appointed agent thereof) from giving or taking, after any such
expiration date, any action identical to, or, at any time, contrary to or
different from, the action or purported action to which such expiration date
relates, in which event the Company may set a record date in respect thereof
pursuant to this paragraph. Nothing in this paragraph shall be construed to
render ineffective any action taken at any time by the Holders (or their duly
appointed agents) of the requisite principal amount of Outstanding Securities of
the relevant series on the date such action is so taken. Notwithstanding the
foregoing or the Trust Indenture Act, the Company shall not set a record date
for, and the provisions of this paragraph shall not apply with respect to, any
notice, declaration or direction referred to in the next paragraph.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any series entitled to
join in the giving or making of (i) any Notice of Default, (ii) any declaration
of acceleration referred to in Section 5.02, if an Event of Default with respect
to Securities of such series has occurred and is continuing and the Trustee
shall not have given such a declaration to the Company, (iii) any request to
institute proceedings referred to in Section 5.07(2) or (iv) any direction
referred to in Section 5.12, in each case with respect to Securities of such
series. Promptly after any record date is set pursuant to this paragraph, the
Trustee shall notify the Company and the Holders of Outstanding Series of such
series of any such record date so fixed and the proposed action. The Holders of
Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
notice, declaration or direction, whether or not such Holders remain Holders
after such record date; provided that, unless such notice, declaration or
direction shall have become effective by virtue of Holders of the requisite
principal amount of Outstanding Securities of such series on such record date
(or their duly appointed agents) having joined therein on or prior to the 90th
day after such record date, such notice, declaration or direction shall
automatically and without any action by any Person be cancelled and of no
further effect. Nothing in this paragraph shall be construed to prevent a Holder
(or a duly appointed agent thereof) from giving, before or after the expiration
of such 90-day period, a notice, declaration or direction contrary to or
different from, or, after the expiration of such period, identical to, the
notice, declaration or direction to which such record date relates, in which
event a new record date in respect thereof shall be set pursuant to this
paragraph. Nothing in this paragraph shall be construed to render ineffective
any notice, declaration or direction of the type referred to in this paragraph
given at any time to the Trustee and the Company by Holders (or their duly
appointed agents) of the requisite principal amount of Outstanding Securities of
the relevant series on the date such notice, declaration or direction is so
given.
11
Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
Section 1.05 Notices, Etc., to Trustee, Company and Subsidiary Guarantors.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any
Subsidiary Guarantor shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing (which may be via facsimile)
to or with the Trustee at its Corporate Trust Office.
(2) the Company or any Subsidiary Guarantor by the Trustee or
by any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
Section 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
12
Section 1.07 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be. Wherever this Indenture refers to a provision of the Trust Indenture
Act, such provision is incorporated by reference in and made a part of this
Indenture.
The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"commission" means the United States Securities and Exchange
Commission;
"indenture securities" means the Securities;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor on the indenture securities" means the Company, the
Subsidiary Guarantors and any other obligor on the Securities.
All other Trust Indenture Act terms used in this Indenture
that are defined by the Trust Indenture Act, defined by the Trust Indenture Act
referenced to another statute or defined by any Commission Rule and not
otherwise defined herein have the meanings defined to them thereby.
Section 1.08 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.09 Successors and Assigns.
All covenants and agreements in this Indenture by the Company
or any Subsidiary Guarantor shall bind its respective successors and assigns,
whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
13
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12 Governing Law.
This Indenture, the Securities and the Subsidiary Guarantees
shall be governed by and construed in accordance with the law of the State of
New York, but without regard to principles of conflicts of laws.
Section 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security or the last date on which a Holder has the
right to convert his Securities shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) or conversion of the
Securities need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, or on such last day for conversion, provided that no
interest shall accrue for the intervening period.
ARTICLE II
SECURITY AND SUBSIDIARY GUARANTEE FORMS
Section 2.01 Forms Generally.
The Securities of each series and the Subsidiary Guarantees to
be endorsed thereon shall be in substantially the form set forth in this
Article, or in such other form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities or Subsidiary Guarantees, as the case may be, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
14
The definitive Securities and the Subsidiary Guarantees to be
endorsed thereon 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 or Subsidiary Guarantees, as the case may be,
as evidenced by their execution of such Securities.
Section 2.02 Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and
the regulations thereunder.]
INTERMAGNETICS GENERAL CORPORATION
-----------------------------------
No. _______________ $_____________
Intermagnetics General Corporation, a Delaware corporation
herein called the "Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to _______________________________________, or registered assigns, the principal
sum of __________________________________ Dollars on
________________________________ [if the Security is to bear interest prior to
Maturity, insert -- , and to pay interest thereon from ____________________ or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on _______________ and ______________ in each
year, commencing _________________, at the rate of ______ per annum, until the
principal hereof is paid or made available for payment [if applicable, insert
--, and at the rate of ___% per annum on any overdue principal and premium and
on any overdue installment of interest]. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the ________ or _______
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
15
[If the Security is not to bear interest prior to Maturity,
insert -- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity, and in such case the overdue principal of this Security
shall bear interest at the rate of ____% per annum, which shall accrue from the
date of such default in payment to the date payment of such principal has been
made or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on demand
shall bear interest at the rate of _____% per annum which shall accrue from the
date of such demand for payment to the date payment of such interest has been
made or duly provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in ____________, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts [if applicable, insert
-- ; provided, however, that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
INTERMAGNETICS GENERAL CORPORATION
By: ____________________________
Name
Title:
Attest:
-------------------------
16
Section 2.03 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of ______, 2006 (herein called the
"Indenture"), among the Company, the Subsidiary Guarantors named therein and
JPMorgan Chase Bank, N.A., as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Subsidiary Guarantors, the Trustee, the holders of Senior
Indebtedness and the Holders of the Securities and of the terms upon which the
Securities and the Subsidiary Guarantees endorsed thereon are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert --, limited in aggregate principal amount
to $___________].
[If applicable, insert -- Subject to and upon compliance with
the provisions of the Indenture, the Holder of this Security is entitled, at his
option, at any time on or before the close of business on __________, or in case
this Security or a portion hereof is called for redemption, then in respect of
this Security or such portion hereof until and including, but (unless the
Company defaults in making the payment due upon redemption) not after, the close
of business on the 10th calendar day before the Redemption Date, to convert this
Security (or any portion of the principal amount hereof which is $1,000 or an
integral multiple thereof), at the principal amount hereof, or of such portion,
into fully paid and non-assessable shares (calculated as to each conversion to
the nearest 1/100 of a share) of Common Stock of the Company at a conversion
price per share of Common Stock equal to $_____ per each share of Common Stock
(or at the current adjusted conversion price if an adjustment has been made as
provided in the Indenture) by surrender of this Security, duly endorsed or
assigned to the Company or in blank, to the Company at its office or agency in
_________, accompanied by written notice to the Company that the Holder hereof
elects to convert this Security, or if less than the entire principal amount
hereof is to be converted, the portion hereof to be converted, and, in case such
surrender shall be made during the period from the close of business on any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date (unless this Security or the portion
thereof being converted has been called for redemption on a Redemption Date
within such period), also accompanied by payment in funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment Date
on the principal amount of this Security then being converted. Subject to the
aforesaid requirement for payment and, in the case of a conversion after the
Regular Record Date next preceding any Interest Payment Date and on or before
such Interest Payment Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to receive an
installment of interest (with certain exceptions provided in the Indenture), no
payment or adjustment is to be made on conversion for interest accrued hereon or
for dividends on the Common Stock issued on conversion. No fractions of shares
or scrip representing fractions of shares will be issued on conversion, but
instead of any fractional interest the Company shall pay a cash adjustment as
provided in the Indenture. The conversion price is subject to adjustment as
provided in the Indenture. In addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company is a party or the
transfer of substantially all of the assets of the Company, the Indenture shall
be amended, without the consent of any Holders of Securities, so that this
Security, if then outstanding, will be convertible thereafter, during the period
this Security shall be convertible as specified above, only into the kind and
amount of securities, cash and other property receivable upon the consolidation,
merger or transfer by a holder of the number of shares of Common Stock into
which this Security might have been converted immediately prior to such
consolidation, merger or transfer (assuming such holder of Common Stock failed
to exercise any rights of election and received per share the kind and amount
received per share by a plurality of non-electing shares).]
17
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, [if
applicable, insert -- (1) on _____________ in any year commencing with the year
20___ and ending with the year 20__ through operation of the sinking fund for
this series at a Redemption Price equal to 100% of the principal amount, and
(2)] at any time [if applicable, insert -- on or after __________, 20__], as a
whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed [if
applicable, insert -- on or before _______________, __%, and if redeemed] during
the 12-month period beginning _____________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
and thereafter at a Redemption Price equal to _______% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, (1) on
____________ in any year commencing with the year ____ and ending with the year
____ through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [if applicable, insert -- on or after ____________], as a whole or in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning ___________ of the years indicated,
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- -------------------
18
and thereafter at a Redemption Price equal to ______% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the
Company may not, prior to ____________, redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than ______% per annum.]
[If applicable, insert -- The sinking fund for this series
provides for the redemption on ______________ in each year beginning with the
year _______ and ending with the year _______ of [if applicable, insert -- not
less than $___________ ("mandatory sinking fund") and not more than]
$___________ aggregate principal amount of Securities of this series. Securities
of this series acquired or redeemed by the Company otherwise than through [if
applicable, insert mandatory] sinking fund payments [if applicable, insert --
and Securities surrendered for conversion] may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- in the inverse order in which they become
due.]
[If the Security is subject to redemption of any kind, insert
-- In the event of redemption or conversion of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed or
unconverted portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.]
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take action
as may be necessary or appropriate to effectuate the subordination so provided
and (c) appoints the Trustee his attorney-in-fact for any and all such purposes.
As provided in the Indenture and subject to certain
limitations therein set forth, the obligations of the Company under the
Indenture and this Security are Guaranteed on a subordinated basis pursuant to
Subsidiary Guarantees endorsed hereon. The Indenture provides that a Subsidiary
Guarantor shall be released from its Subsidiary Guarantee upon compliance with
certain conditions.
[If applicable, insert -- The Indenture contains provisions
for defeasance at any time of [(1) the entire indebtedness of this Security or
(2)] certain restrictive covenants and Events of Default with respect to this
Security, in each case upon compliance with certain conditions set forth in the
Indenture.]
19
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to -- insert formula for determining
the amount. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest all
of the Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the Subsidiary Guarantors and the rights of the
Holders of the Securities of each series to be affected under the Indenture at
any time by the Company, the Subsidiary Guarantors and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company or
the Subsidiary Guarantors with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
Subject to the rights of holders of Senior Indebtedness, as
set forth in the Indenture, no other reference herein to the Indenture and no
other provision of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Security at the times,
place and rate, and in the coin or currency, herein prescribed or to convert
this Security as provided in the Indenture.
20
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and any premium and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company or the Security Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Subsidiary
Guarantors, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
[If applicable, insert --
[FORM OF CONVERSION NOTICE]
To: INTERMAGNETICS GENERAL CORPORATION
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof (which is
$1,000 or an integral multiple thereof) below designated, into shares of Common
Stock of Intermagnetics General Corporation, in accordance with the terms of the
Indenture referred to in this Security, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Securities, representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If shares are to be issued in the name
of a person other than the undersigned, the undersigned will pay all transfer
taxes payable with respect thereto. Any amount required to be paid by the
undersigned on account of interest accompanies this Security.
21
Dated:
Fill in for registration of
shares of Common Stock and
Securities if to be issued
otherwise than to the
registered holder.
Principal Amount to be
converted (in an integral
multiple of $1,000, if
less than all):
------------------------------- $
Name
-------------------------------
Address
------------------------------- -------------------------------------
(Please print name and Signature
address, including zip code
number)
SOCIAL SECURITY OR OTHER
TAXPAYER IDENTIFYING [SIGNATURE GUARANTEED --
NUMBER required only if
Common Stock and Securities are to be
issued and delivered to other than
registered holder]
[______________________________]
Section 2.04 Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 3.01 for
the Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every Security
authenticated and delivered upon registration of transfer of, or in exchange for
or in lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances.
22
Section 2.05 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated herein
with the Subsidiary Guarantees endorsed hereon and referred to in the
within-mentioned Indenture.
JPMORGAN CHASE BANK, N.A.
as Trustee
By: _______________________
Authorized Officer
Dated: ____________________
Section 2.06 Form of Guarantee.
GUARANTEE
For value received, each of the Subsidiary Guarantors listed
below hereby jointly and severally unconditionally guarantees to the Holder of
the Security upon which this Guarantee is endorsed, and to the Trustee for
itself and on behalf of such Holder, the due and punctual payment of the
principal of (and premium, if any) and interest on such Security when and as the
same shall become due and payable, whether at the Stated Maturity, by
acceleration, call for redemption, purchase or otherwise, according to the terms
thereof and of the Indenture referred to therein and all other obligations of
the Company under the Indenture. In case of the failure of the Company
punctually to make any such payment, each of the Subsidiary Guarantors hereby
jointly and severally agrees to cause such payment to be made punctually when
and as the same shall become due and payable, whether at the Stated Maturity or
by acceleration, call for redemption, purchase or otherwise, and as if such
payment were made by the Company.
Each of the Subsidiary Guarantors hereby jointly and severally
agrees that its obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of such Security or the Indenture,
the absence of any action to enforce the same or any release or amendment or
waiver of any term of any other Guarantee of, or any consent to departure from
any requirement of any other Guarantee of all or of any of the Securities, the
election by the Trustee or any of the Holders in any proceeding under Chapter 11
of the Bankruptcy Code of the application of Section 1111(b)(2) of the
Bankruptcy Code, any borrowing or grant of a security interest by the Company,
as debtor-in-possession, under Section 364 of the Bankruptcy Code, the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of
the claims of the Trustee or any of the Holders for payment of any of the
Securities, any waiver or consent by the Holder of such Security or by the
Trustee or either of them with respect to any provisions thereof or of the
Indenture, the obtaining of any judgment against the Company or any action to
enforce the same or any other circumstances which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each of the Subsidiary
Guarantors hereby waives the benefits of diligence, presentment, demand of
payment, any requirement that the Trustee or any of the Holders exhaust any
right or take any action against the Company or any other Person, filing of
claims with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest or notice with
respect to such Security or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Subsidiary Guarantee will not be discharged
except by complete performance of the obligations contained in such Security and
in this Subsidiary Guarantee. Each of the Subsidiary Guarantors hereby agrees
that, in the event of a default in payment of principal (or premium, if any) or
interest on such Security, whether at the Stated Maturity, by acceleration, call
23
for redemption, purchase or otherwise, legal proceedings may be instituted by
the Trustee on behalf of, or by, the Holder of such Security, subject to the
terms and conditions set forth in the Indenture, directly against each of the
Subsidiary Guarantors to enforce this Subsidiary Guarantee without first
proceeding against the Company. Each Subsidiary Guarantor agrees that if, after
the occurrence and during the continuance of an Event of Default, the Trustee or
any of the Holders are prevented by applicable law from exercising their
respective rights to accelerate the maturity of the Securities, to collect
interest on the Securities, or to enforce or exercise any other right or remedy
with respect to the Securities, such Subsidiary Guarantor agrees to pay to the
Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
The indebtedness of each Subsidiary Guarantor evidenced by
this Subsidiary Guarantee is, to the extent provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness of such Subsidiary Guarantor, and this Subsidiary Guarantee
is issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
so provided and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes.
No reference herein to the Indenture and no provision of this
Subsidiary Guarantee or of the Indenture shall alter or impair the Subsidiary
Guarantee of any Subsidiary Guarantor, which is absolute and unconditional, of
the due and punctual payment of the principal (and premium, if any) and interest
on the Security upon which this Subsidiary Guarantee is endorsed.
Each Subsidiary Guarantor shall be subrogated to all rights of
the Holder of this Security against the Company in respect of any amounts paid
by such Subsidiary Guarantor on account of this Security pursuant to the
provisions of its Subsidiary Guarantee or the Indenture; provided, however, that
such Subsidiary Guarantor shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation until the
principal of (and premium, if any) and interest on this Security and all other
Securities issued under the Indenture shall have been paid in full.
24
This Subsidiary Guarantee shall remain in full force and
effect and continue to be effective should any petition be filed by or against
the Company for liquidation or reorganization, should the Company become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the
Company's assets, and shall, to the fullest extent permitted by law, continue to
be effective or be reinstated, as the case may be, if at any time payment and
performance of the Securities is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any obligee on
the Securities whether as a "voidable preference," "fraudulent transfer," or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Securities shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
The Subsidiary Guarantors shall have the right to seek
contribution from any non-paying Subsidiary Guarantor so long as the exercise of
such right does not impair the rights of the Holders under this Subsidiary
Guarantee.
The Subsidiary Guarantors or any particular Subsidiary
Guarantor shall be released from this Subsidiary Guarantee upon the terms and
subject to certain conditions provided in the Indenture.
By delivery of a Supplemental Indenture to the Trustee in
accordance with the terms of the Indenture, each Person that becomes a
Subsidiary Guarantor after the date of the Indenture will be deemed to have
executed and delivered this Guarantee for the benefit of the Holder of this
Security with the same effect as if such Subsidiary Guarantor was named below.
All terms used in this Subsidiary Guarantee which are defined
in the Indenture referred to in the Security upon which this Subsidiary
Guarantee is endorsed shall have the meanings assigned to them in such
Indenture.
This Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Security upon which
this Subsidiary Guarantee is endorsed shall have been executed by the Trustee
under the Indenture by manual signature.
Reference is made to Article XIV and Article XVI of the
Indenture for further provisions with respect to this Subsidiary Guarantee.
THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has
caused this Subsidiary Guarantee to be duly executed.
[Insert Subsidiary Guarantors, as applicable]
Each as Subsidiary Guarantor
By_______________________________
Authorized Signatory
25
ARTICLE III
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 3.03, set forth, or determined in the manner provided, in an Officer's
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series, including CUSIP
Numbers (which shall distinguish the Securities of the series from
Securities of any other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06 or
11.07 and except for any Securities which, pursuant to Section 3.03,
are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date for any interest payable
on any Interest Payment Date;
(6) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
26
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the currency of
the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in Section 1.01;
(11) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(13) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;
(14) the applicability, nonapplicability, or variation, of
Article XIV with respect to the Securities of such Series;
(15) if applicable, that the Securities of the series shall be
subject to either or both of Defeasance or Covenant Defeasance as
provided in Article XIII; provided that no series of Securities that is
convertible into Common Stock as provided in Article XV or convertible
into or exchangeable for any other securities pursuant to Section
3.01(18) shall be subject to Defeasance pursuant to Section 13.02;
(16) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such
Global Security or Global Securities and any circumstances other than
those set forth in Section 3.05 in which any such Global Security may
be transferred to, and registered and exchanged for Securities
registered in the name of, a Person other than the Depositary for such
Global Security or a nominee thereof and in which any such transfer may
be registered;
(17) the terms and conditions, if any, pursuant to which the
Securities are convertible into Common Stock of the Company pursuant to
Article XV, and any variation thereof;
27
(18) the terms and conditions, if any, pursuant to which the
Securities are convertible into or exchangeable for any other
securities;
(19) any addition to or change in the Events of Default set
forth in Section 5.01 and the covenants set forth in Article X which
applies to Securities of the series;
(20) any requirements for Subsidiary Guarantees by any
Subsidiary Guarantors; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 9.01(5)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
3.03) set forth, or determined in the manner provided, in the Officer's
Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officer's Certificate setting forth the terms of the series.
The Company may, from time to time, by adoption of a Board
Resolution and subject to compliance with any other applicable provisions of
this Indenture, without the consent of the Holders, create and issue pursuant to
this Indenture additional securities of any series of Securities ("Add On
Securities") having terms and conditions identical to those of such series of
Outstanding Securities, except that such Add On Securities:
(i) may have a different issue date from such series of
Outstanding Securities;
(ii) may have a different amount of interest payable on the
first Interest Payment Date after issuance than is payable on such series of
Outstanding Securities; and
(iii) may have terms specified in such Board Resolution for
such Add On Securities making appropriate adjustments to this Article III
applicable to such Add On Securities in order to conform to and ensure
compliance with the Securities Act (or applicable securities laws) which are not
adverse in any material respect to the Holder of any Outstanding Securities
(other than such Add On Securities) and which shall not affect the rights or
duties of the Trustee.
Section 3.02 Denominations.
The Securities of each series shall be issuable only in
registered form without coupons in such denominations as shall be specified as
contemplated by Section 3.01. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
28
Section 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents under its corporate seal reproduced thereon attested by
its Chief Financial Officer, its Treasurer or an Assistant Treasurer, its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any Series
executed by the Company and having endorsed thereon the Subsidiary Guarantees
executed pursuant to Section 14.02 by the Subsidiary Guarantors to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Securities with the Subsidiary Guarantees endorsed thereon, and
the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities with the Subsidiary Guarantees endorsed thereon. If the form or
terms of the Securities of the series have been established in or pursuant to
one or more Board Resolutions as permitted by Sections 2.01 and 3.01, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
provided with and (subject to Section 6.01) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.01, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 3.01, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
29
Notwithstanding the provisions of Section 3.01 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 Officer's
Certificate otherwise required pursuant to Section 3.01 or the Company Order 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 authentication upon original issuance
of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security or Subsidiary Guarantee shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security and the Subsidiary Guarantee endorsed thereon have
been duly authenticated and delivered hereunder. Notwithstanding the foregoing,
if any Security shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 3.09, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.04 Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and having endorsed thereon the Subsidiary Guarantees substantially
of the tenor of the definitive Subsidiary Guarantees in lieu of which they are
issued duly executed by the Subsidiary Guarantors and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities and Subsidiary Guarantees may determine, as evidenced
by their execution of such Securities and Subsidiary Guarantees.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and having endorsed thereon Subsidiary
Guarantees of the same tenor executed by the Subsidiary Guarantors. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
30
Section 3.05 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like tenor and
aggregate principal amount, each such Security having endorsed thereon the
Subsidiary Guarantees executed by the Subsidiary Guarantors.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like tenor and aggregate principal amount, and having the
Subsidiary Guarantee endorsed thereon executed by each Subsidiary Guarantor,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, the Subsidiary Guarantors shall execute the Subsidiary Guarantees
endorsed on and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities and the Subsidiary Guarantees endorsed thereon
issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company and the respective Subsidiary Guarantors,
evidencing the same debt and Subsidiary Guarantees, and entitled to the same
benefits under this Indenture, as the Securities and Subsidiary Guarantees
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company or Security Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or
11.07 not involving any transfer.
The Company shall not be required (1) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
11.03 and ending at the close of business on the day of such mailing, or (2) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
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Notwithstanding any other provision in this Indenture, no
Global Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depositary for such Global
Security or any nominee thereof, and no such transfer may be registered, unless
(1) such Depositary (A) notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (B) has ceased to be a
clearing agency registered under the Exchange Act, (2) the Company executes and
delivers to the Trustee a Company Order that such Global Security shall be so
transferable, registrable and exchangeable, and such transfers shall be
registrable, (3) there shall have occurred and be continuing an Event of Default
with respect to the Securities evidenced by such Global Security or (4) there
shall exist such other circumstances, if any, as have been specified for this
purpose as contemplated by Section 3.01. Notwithstanding any other provision in
this Indenture, a Global Security to which the restriction set forth in the
preceding sentence shall have ceased to apply may be transferred only to, and
may be registered and exchanged for Securities registered only in the name or
names of, such Person or Persons as the Depositary for such Global Security
shall have directed and no transfer thereof other than such a transfer may be
registered.
Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security to which the
restriction set forth in the first sentence of the preceding paragraph shall
apply, whether pursuant to this Section, Section 3.04, 3.06, 9.06 or 11.07 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute, the Subsidiary Guarantors shall execute the Subsidiary
Guarantees endorsed thereon, and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them, each Subsidiary Guarantor and any agent of either of them harmless, then,
in the absence of notice to the Company or the Trustee that such Security has
been acquired by a protected purchaser, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding and
having endorsed thereon the Subsidiary Guarantees executed by the Subsidiary
Guarantors.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
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Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Security of any series issued pursuant to this
Section in exchange for any mutilated Security or in lieu of any destroyed, lost
or stolen Security shall constitute an original additional contractual
obligation of the Company and the respective Subsidiary Guarantors, whether or
not the mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.01
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 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 therefor to be mailed, first-class postage prepaid,
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to each Holder of Securities of such series at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Subject to the provisions of Section 15.02, in the case of any
Security which is converted after any Regular Record Date and on or prior to the
next succeeding Interest Payment Date, interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on such Regular Record Date. Except as otherwise expressly provided in
the immediately preceding sentence, in the case of any Security which is
converted, interest whose Stated Maturity is after the date of conversion of
such Security shall not be payable.
Section 3.08 Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and any premium and (subject to
Section 3.07) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Subsidiary Guarantors, the Trustee nor any agent of the Company, the
Subsidiary Guarantors or the Trustee shall be affected by notice to the
contrary.
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Section 3.09 Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of by
the Trustee in its customary manner.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01
for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee in writing of any changes in the "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of conversion, registration of
transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.06 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
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(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company and/or a Subsidiary
Guarantor, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company and/or a Subsidiary Guarantor has paid or
caused to be paid all other sums payable hereunder by the Company and
the Subsidiary Guarantors; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.07,
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of Clause (1) of this Section, the obligations of the Trustee under Section
4.02, shall survive such satisfaction and discharge.
Section 4.02 Application of Trust Money.
All money deposited with the Trustee pursuant to Section 4.01
shall be held in trust and applied by it, in accordance with the provisions of
the Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and any
premium and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE V
REMEDIES
Section 5.01 Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be occasioned by the
provisions of Article XVI or 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):
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(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of Section 8.01 or
Section 8.02; or
(5) default in the performance, or breach, of any covenant or
warranty of the Company 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 series of
Securities other than that series), and continuance of such default or
breach for a period of 30 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
(6) the Company shall fail to pay any Indebtedness in excess
of $50,000,000 owing by the Company, or any interest or premium
thereon, when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Indebtedness, or the Company shall fail
to perform any term, covenant or agreement on its part to be performed
under any agreement or instrument evidencing or securing or relating to
any such Indebtedness, if the effect of such failure in either case is
that the maturity of such Indebtedness is duly accelerated, without
such Indebtedness having been discharged or such acceleration having
been rescinded or annulled, in each such case, within a period of 10
days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee
by Holders of at least 25% in principal amount of the Outstanding
Securities of that series, a written notice specifying such default and
requiring the Company to cause such Indebtedness to be discharged or
cause such acceleration to be rescinded or annulled, as the case may
be, and stating that such notice is a "Notice of Default" hereunder
(the Trustee shall not be deemed to have knowledge of a default under
this subsection (5) unless it shall have actual knowledge thereof);
provided, however, that, subject to the provisions of Sections 6.01 and
6.05, the Trustee shall not be deemed to have knowledge of such failure
to pay unless either (A) a Responsible Officer of the Trustee shall
have actual knowledge of such failure to pay or (B) the Trustee shall
have received written notice thereof from the Company, from any Holder,
from the holder of any such Indebtedness or from the trustee
thereunder; or
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(7) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Subsidiary Guarantor that is a Significant Subsidiary 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 or any Subsidiary Guarantor that is a
Significant Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any
Subsidiary Guarantor that is a Significant Subsidiary under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any Subsidiary Guarantor that is a Significant
Subsidiary or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(8) the commencement by the Company or any Subsidiary
Guarantor that is a Significant Subsidiary 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 or any Subsidiary Guarantor that is a Significant Subsidiary 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 other similar official of the Company or any
Subsidiary Guarantor that is a Significant Subsidiary or of any
substantial part of their respective 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 or any Subsidiary
Guarantor that is a Significant Subsidiary in furtherance of any such
action;
(9) except as permitted by the terms hereof and the
Securities, the cessation of effectiveness of any Subsidiary Guarantee
of a Significant Subsidiary or the finding by any judicial proceeding
that any such Subsidiary Guarantee is unenforceable or invalid or the
denial or disaffirmation by any Subsidiary Guarantor that is a
Significant Subsidiary of its obligations under its Subsidiary
Guarantee; or
(10) any other Event of Default provided with respect to
Securities of that series.
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Section 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 5.01(7) or 5.01(8)) with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
specified in Section 5.01(7) or 5.01(8) with respect to Securities of any series
at the time Outstanding occurs, the principal amount of all the Securities of
that series (or, in the case of any Security of that series which specifies an
amount to be due and payable thereon upon acceleration of the Maturity thereof,
such amount as may be specified by the terms thereof) shall automatically, and
without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company and/or any Subsidiary Guarantor has paid or
deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor
in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
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(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
necessary to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or
any Subsidiary Guarantor (or any other obligor upon the Securities), or any of
the property or creditors of the Company or any Subsidiary Guarantor (or any
other obligor upon the Securities), the Trustee shall be entitled and empowered,
by intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
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Section 5.05 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.06 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or any premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 6.07;
SECOND: To the payment of the amounts then due and
unpaid for principal of and any premium and interest on the
Securities in respect of which or for the benefit of which
such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable
on such Securities for principal and any premium and interest,
respectively; and
THIRD: To the Company, or to the extent the Trustee
collects any amount directly from any Subsidiary Guarantor, to
the Subsidiary Guarantor.
Section 5.07 Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.08 Unconditional Right of Holders to Receive Principal, Premium and
Interest and to Convert.
Notwithstanding any other provision in this Indenture, but
subject to Article XVI, the Holder of any Security shall have the right, which
is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 3.07) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to convert such Security in accordance
with Article XV and to institute suit for the enforcement of any such payment
and right to convert, and such rights shall not be impaired without the consent
of such Holder.
Section 5.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Subsidiary Guarantors, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
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Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 5.12 Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.01, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of
the Trustee, determine, and the Trustee shall have received a legal
opinion stating, that the proceedings so directed would involve the
Trustee in personal liability.
Section 5.13 Waiver of Past Defaults.
Subject to Section 5.02, the Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
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Section 5.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs (including reasonable attorneys' fees and expenses) against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided that neither this Section nor the Trust Indenture Act shall apply to
any suit instituted by the Trustee, to any suit instituted by any Holders of the
Securities, or group of Holders of the Securities, holding in the aggregate more
than 10% of principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder of the Outstanding Securities for the
enforcement of the payment of principal of or interest on any Outstanding
Securities held by such Holder, on or after the respective due dates expressed
in such Outstanding Securities, and provided, further, that neither this Section
nor the Trust Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit instituted by the
Company or any Subsidiary Guarantor or the Trustee or, if applicable, in any
suit for the enforcement of the right to convert any Security in accordance with
Article XV.
Section 5.15 Waiver of Usury, Stay or Extension Laws.
Each of the Company and each Subsidiary Guarantor covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and each of the Company and each Subsidiary Guarantor (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
Section 6.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
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(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others, and no
covenants or obligations shall be implied in or read into this
Indenture.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. 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 be under a duty to examine
the same to determine whether or not they substantially conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 6.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.12.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or to take or omit to take any
action under this Indenture.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this
Section 6.01.
(f) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company or
any Subsidiary Guarantor. Assets held in trust by the Trustee need not be
segregated from other assets except to the extent required by law.
Section 6.02 Rights of Trustee.
Subject to Section 6.01:
(a) The Trustee may rely conclusively on any document (whether
in its original or facsimile form) 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 any document.
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(b) Before the Trustee acts or refrains from acting, it may
require an Officer's Certificate and 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 certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company or any Subsidiary Guarantor, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such investigation.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities which
may be incurred therein or thereby.
(g) 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 of any action taken, suffered or omitted by the
Trustee hereunder in good faith and in reliance thereon.
(h) The Trustee shall not be deemed to have notice of any
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture.
(i) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person employed
to act hereunder.
(j) In no event shall the Trustee be responsible or liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
(k) The permissive rights of the Trustee enumerated herein
shall not be construed as duties.
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Section 6.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
any Subsidiary Guarantor, or their respective Affiliates, with the same rights
it would have if it were not Trustee. Any Paying Agent or Security Registrar may
do the same with like rights.
Section 6.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities or any Subsidiary Guarantee and it
shall not be accountable for the Company's or any Subsidiary Guarantor's use of
the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities or any Subsidiary Guarantee, other than the
Trustee's certificate of authentication, or the use or application of any funds
received by a Paying Agent other than the Trustee.
Section 6.05 Notice of Default.
If an Event of Default with respect to Securities of any
series occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to each Holder of Securities of such series notice of the uncured
Event of Default within 90 days after such Event of Default occurs. Except in
the case of an Event of Default in payment of principal (or premium, if any) of,
or interest on, any Security, the Trustee may withhold the notice if and so long
as a Responsible Officer in good faith determines that withholding the notice is
in the interest of the Holders of Securities of such series.
Section 6.06 Reports by Trustee to Holders.
Within 60 days after each February 15 beginning with the
February 15 following the date of this Indenture, the Trustee shall mail to each
Holder a brief report dated as of such date that complies with Trust Indenture
Act Section 313(a) if such report is required by such Trust Indenture Act
Section 313(a). The Trustee also shall comply with Trust Indenture Act Sections
313(c) and 313(d).
The Company shall promptly notify the Trustee in writing if
the Securities of any series become listed on any stock exchange or automatic
quotation system.
A copy of each report at the time of its mailing to Holders
shall be mailed to the Company and filed with the Commission and each stock
exchange, if any, on which the Securities are listed.
Section 6.07 Compensation and Indemnity.
The Company and the Subsidiary Guarantors shall pay to the
Trustee from time to time such compensation for its services as the Company and
the Trustee shall from time to time agree in writing. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company and the Subsidiary Guarantors shall reimburse the Trustee
upon request for all reasonable disbursements, expenses and advances incurred or
made by it. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents, accountants, experts and
counsel.
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The Company and the Subsidiary Guarantors, jointly and
severally, shall indemnify each of the Trustee (in its capacity as Trustee) and
any predecessor Trustee and each of their respective officers, directors,
attorneys-in-fact and agents for, and hold it harmless against, any claim,
demand, expense (including but not limited to reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel), loss, damage,
charges (including taxes (other than taxes based upon the income of the
Trustee)) or liability incurred by them without negligence or willful misconduct
on its part, arising out of or in connection with the acceptance or
administration of this trust and their rights or duties hereunder including the
reasonable costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The Trustee shall notify the Company and the Subsidiary
Guarantors promptly of any claim asserted against the Trustee for which it may
seek indemnity. The Company and the Subsidiary Guarantors shall defend the claim
and the Trustee shall provide reasonable cooperation at the Company's expense in
the defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company and the Subsidiary
Guarantors need not pay for any settlement made without their written consent,
which consent shall not be unreasonably withheld. The Company and the Subsidiary
Guarantors need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee to the extent determined by a court of
competent jurisdiction to have been caused by its own negligence, or willful
misconduct.
To secure the Company's and the Subsidiary Guarantors' payment
obligations in this Section 6.07, the Trustee shall have a lien prior to the
Securities on all assets held or collected by the Trustee, in its capacity as
Trustee, except assets held in trust to pay principal and premium, if any, of or
interest on any series of Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.01(7) or (8) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 6.07 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article IV of this Indenture
and any rejection or termination of this Indenture under any Bankruptcy Law.
Section 6.08 Replacement of Trustee.
The Trustee may resign at any time with respect to the
Securities of one or more series by so notifying the Company and the Subsidiary
Guarantors in writing. The Holder or Holders of a majority in principal amount
of the outstanding Securities of a series may remove the Trustee with respect to
Securities of such series by so notifying the Company and the Trustee in writing
and may appoint a successor trustee with respect to Securities of such series
with the Company's consent. The Company may remove the Trustee if:
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(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver, custodian, or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee, with respect to the Securities of one or more series, for
any reason, the Company shall promptly appoint a successor Trustee, with respect
to Securities of that or those series. Within one year after the successor
Trustee with respect to a series of Securities takes office, the Holder or
Holders of a majority in principal amount of the Securities of such series may
appoint a successor Trustee with respect to such series to replace the successor
Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that
and provided that all sums owing to the Trustee provided for in Section 6.07
have been paid, the retiring Trustee shall transfer all property held by it as
Trustee with respect to such series of Securities to the successor Trustee,
subject to the lien provided in Section 6.07, 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. A
successor Trustee with respect to one or more series of Securities shall mail
notice of its succession to each Holder of Securities of that or those series.
If a successor Trustee with respect to a series of Securities
does not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company, the Subsidiary Guarantors or the
Holder or Holders of at least 10% in principal amount of the outstanding
Securities of that series may petition at the expense of the Company any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to such series.
If the Trustee fails to comply with Section 6.10, any Holder
of Securities of a series may petition any court of competent jurisdiction for
the removal of the Trustee with respect to such series and the appointment of a
successor Trustee with respect to such series.
Notwithstanding replacement of the Trustee pursuant to this
Section 6.08, the Company's obligations under Section 6.07 shall continue for
the benefit of the retiring Trustee.
Section 6.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
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Section 6.10 Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of
Trust Indenture Act Section 310(a)(1) and Trust Indenture Act 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 Trust Indenture Act Section 310(b).
Section 6.11 Preferential Collection of Claims against Company.
The Trustee shall comply with Trust Indenture Act Section
311(a), excluding any creditor relationship listed in Trust Indenture Act
Section 311(b). A Trustee who has resigned or been removed shall be subject to
Trust Indenture Act Section 311(a) to the extent indicated.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(1) semi-annually, not more than 15 days after each Regular
Record Date, a list for each series of Securities, in such form as the
Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of the Regular Record Date, as
the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 7.02 Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.01 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
The rights of the Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company, the Subsidiary Guarantors and the Trustee that neither
the Company, the Subsidiary Guarantors nor the Trustee nor any agent of either
of them shall be held accountable by reason of any disclosure of information as
to names and addresses of Holders made pursuant to the Trust Indenture Act.
50
Section 7.03 Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto.
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee, in writing, when any Securities are listed on
any stock exchange or delisted therefrom.
Section 7.04 Reports by Company.
The Company and each of the Subsidiary Guarantors shall file
with the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to the Trust Indenture Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed with
the Trustee within 15 days after the same is so required to be filed with the
Commission. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms.
The Company may not, in a single transaction or a series of
related transactions:
(a) consolidate or merge with or into any other Person or
permit any other Person to consolidate or merge with or into the Company, or
(b) directly or indirectly transfer, sell, lease or otherwise
dispose of all or substantially all of its assets, unless:
(1) in a transaction in which the Company does not survive or
in which the Company sells, leases or otherwise disposes of all or
substantially all of its assets, the successor entity to the Company
(A) is organized under the laws of the United States or any State
thereof or the District of Columbia and (B) shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee
in form and substance reasonably satisfactory to the Trustee, the due
and punctual payment and performance of all of the Company's
obligations under the Indenture and the performance of every covenant
of this Indenture on the part of the Company to be performed or
observed;
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(2) immediately before and after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing; and
(3) the Company and the successor Person shall have delivered
to the Trustee an Officer's Certificate and an Opinion of Counsel each
stating that such consolidation, merger, conveyance, lease, sale,
disposition or transfer and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 8.02 Mergers, Consolidations and Certain Sales of Assets by Subsidiary
Guarantors.
(a) Except with respect to the Securities of any series whose
terms permit such transactions as an asset sale, no Subsidiary Guarantor shall,
and the Company shall not permit any Subsidiary Guarantor to, (i) consolidate or
merge with or into, or (ii) directly or indirectly transfer, sell, lease or
otherwise dispose of its properties and assets substantially as an entirety to,
any other Person (other than the Company or another Subsidiary Guarantor)
unless, in any such transaction:
(1) in the case such Subsidiary Guarantor shall consolidate or
merge with or into another Person or shall directly or indirectly
convey, transfer or lease its properties and assets substantially as an
entirety, the Person formed by such consolidation with or into which
such Subsidiary Guarantor is consolidated or merged, or the Person
which acquires by transfer, sale or lease the properties and assets of
such Subsidiary Guarantor substantially as an entirety (for purposes of
this Article VIII, a "Successor Subsidiary Guarantor"), shall be
organized under the laws of the United States or any State thereof or
the District of Columbia;
(2) the Successor Subsidiary Guarantor shall expressly assume
by an indenture supplemental hereto executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and
punctual payment and performance of all obligations of such Subsidiary
Guarantor obligations under its Subsidiary Guarantee and the Indenture
and the performance of every covenant of this Indenture on the part of
such Subsidiary Guarantor to be performed or observed;
(3) immediately before and after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing; and
(4) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, complies with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
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The provisions of this Section 8.02 shall not be applicable to
any series of Securities unless, and only to the extent that, the terms of a
particular series of Securities so provide.
The provisions of this Section 8.02 shall not be applicable to any
merger or consolidation of a Subsidiary Guarantor into the Company (with the
Company being the surviving entity) or another Subsidiary Guarantor nor shall it
be applicable to the transfer, sale, lease or other disposition of the
properties and assets of a Subsidiary Guarantor substantially as an entity to
the Company or another Subsidiary Guarantor.
Section 8.03 Successor Corporation Substituted.
Upon any consolidation or merger or any transfer of assets in
accordance with Section 8.01, the surviving Person formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such surviving
Person had been named as the Company herein. When a surviving Person duly
assumes all of the obligations of the Company pursuant hereto and pursuant to
the Securities, the predecessor shall be relieved of the performance and
observance of all obligations and covenants of this Indenture and the
Securities, including but not limited to the obligation to make payment of the
principal of (and premium, if any) and interest on all the Securities then
outstanding, and the Company may thereupon or any time thereafter be liquidated
and dissolved.
Except with respect to the Securities of any series whose
terms permit such transactions as an asset sale, upon any consolidation, or
merger of a Subsidiary Guarantor with or into, or any conveyance, transfer or
lease of the properties and assets of such Subsidiary Guarantor substantially as
an entirety in accordance with Section 8.02 to, a Person other than the Company
or another Subsidiary Guarantor, the Successor Subsidiary Guarantor shall
succeed to, and be substituted for, and may exercise every right and power of,
such Subsidiary Guarantor under this Indenture with the same effect as if such
Successor Subsidiary Guarantor had been named as a Subsidiary Guarantor herein,
and thereafter, except in the case of a lease, the predecessor Subsidiary
Guarantor shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution of the Company, the Subsidiary Guarantors, when
authorized by respective Board Resolutions of the Subsidiary Guarantors, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
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(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company;
(3) to add any additional Events of Default;
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form;
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (A) shall neither (i)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any such Security
with respect to such provision or (B) shall become effective only when
there is no such Security Outstanding;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of any series
as permitted by Sections 2.01 and 3.01;
(8) to comply with Section 8.01 and 8.02;
(9) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(10) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11;
(11) to make provisions with respect to the conversion rights
of Holders pursuant to the requirements of Article XV;
(12) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this clause (9) shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect;
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(13) to add new Subsidiary Guarantors pursuant to Section
14.05; or
(14) to conform any provision of this Indenture to the
"Description of Debt Securities" contained in the Prospectus or any
similar provision contained in any supplement to the Prospectus
relating to an offering of debt securities under this Indenture.
Section 9.02 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Subsidiary Guarantors and the Trustee, the Company, when authorized by a Board
Resolution of the Company, the Subsidiary Guarantors, when authorized by
respective Board Resolutions of the Subsidiary Guarantors, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest or the time of payment
of interest thereon or any premium payable upon the redemption thereof,
or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02, or
change any Place of Payment where, or the coin or currency in which,
any Security or any premium or interest thereon is payable or the right
of selection thereof, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
adversely affect the right to convert any Security as provided in
Article XV, or modify the provisions of this Indenture with respect to
the ranking of the Securities in a manner adverse to the Holders;
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;
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(3) modify any of the provisions of this Section or Section
5.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the requirements of
Sections 6.08 and 9.01(10);
(4) change any obligations of ours to maintain an office or
agency, or modify or waive the provisions of Article XI;
(5) modify or change any provision of this Indenture or the
related definitions affecting the subordination or ranking of the
Securities or any Subsidiary Guarantee in a manner which adversely
affects the Holders;
(6) change any obligation of ours to pay additional amounts;
(7) adversely affect the right of repayment or repurchase at
the option of the Holder; or
(8) reduce or postpone any sinking fund or similar provision.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.01) shall be fully protected in relying
upon, in addition to the documents required by Section 102, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
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Section 9.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 9.06 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company and
the Subsidiary Guarantors shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee, the Company and the
Subsidiary Guarantors, to any such supplemental indenture may be prepared and
executed by the Company, and the Subsidiary Guarantees endorsed thereon may be
executed by the Subsidiary Guarantors and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
Section 10.01 Payment of Securities.
The Company covenants and agrees for the benefit of each
series of Securities that it will pay the principal of and interest on the
Securities of that series on the dates and in the manner provided in the
Securities of that series and this Indenture. An installment of principal,
premium, if any, or interest on the Securities shall be considered paid on the
date it is due if the Trustee or Paying Agent (other than the Company or an
Affiliate of the Company) holds for the benefit of the Holders, on that date,
immediately available funds deposited and designated for and sufficient to pay
the installment.
The Company shall pay interest on overdue principal and on
overdue installments of interest at the rate specified in the Securities
compounded semi-annually, to the extent lawful.
Section 10.02 Maintenance of Office or Agency.
The Company shall maintain in the Place of Payment for any
series of Securities, an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, where Securities of any
series that is convertible may be surrendered for conversion, and where notices
and demands to or upon the Company or any Subsidiary Guarantor in respect of the
Securities of that series, any Subsidiary Guarantees endorsed thereon and this
Indenture may be served. The Company and the Subsidiary Guarantors will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company or any Subsidiary
Guarantor shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and each of the Company and each Subsidiary Guarantor
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
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The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company shall give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such
other office or agency. The Company hereby initially designates the principal
corporate trust office of the Trustee as such office of the Company.
Section 10.03 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, on or prior to each due date of the principal
of or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2)
during the continuance of any default by the Company (or any other obligor upon
the Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in New York City, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
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Section 10.04 Corporate Existence.
Subject to Article VIII, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate or other existence of each of its
Subsidiaries in accordance with the respective organizational documents of each
of them and the rights (charter and statutory) and corporate franchises of the
Company and each of its Subsidiaries; provided, however, that the Company shall
not be required to preserve, with respect to itself, any right or franchise, and
with respect to any of its Subsidiaries, any such existence, right or franchise,
if (a) the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and (b) the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 10.05 Payment of Taxes and Other Claims.
The Company shall, and shall cause each of its Subsidiaries
to, pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and additions to taxes)
levied or imposed upon the Company or any of its Subsidiaries or properties and
assets of the Company or any of its Subsidiaries and (ii) all lawful claims,
whether for labor, materials, supplies, service or anything else, which have
become due and payable and which by law have or may become a Lien upon the
property and assets of the Company or any of its Subsidiaries; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which disputed amounts adequate reserves have been
established in accordance with generally accepted accounting principles.
Section 10.06 Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee within 120 days
after the end of its fiscal year an Officer's Certificate complying with Section
314(a)(4) of the Trust Indenture Act and stating that a review of its activities
and the activities of its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its obligations
under this Indenture (all without regard to periods of grace, which shall be
deemed fulfilled unless and until the expiration of such periods, or notice
requirements) and further stating, as to each such officer signing such
certificate, whether or not the signer knows of any failure by the Company or
any Subsidiary of the Company to comply with any conditions or covenants in this
Indenture and, if such signer does know of such a failure to comply, the
certificate shall describe such failure with particularity. The Officer's
Certificate shall also notify the Trustee should the relevant fiscal year end on
any date other than the current fiscal year end date.
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(b) The Company shall, so long as any of the Securities of any
series are outstanding, deliver to the Trustee, immediately upon becoming aware
of any Event of Default with respect to such series under this Indenture, an
Officer's Certificate specifying such Event of Default and what action the
Company or the Subsidiary is taking or proposes to take with respect thereto.
The Trustee shall not be deemed to have knowledge of an Event of Default unless
one of its Responsible Officers receives notice of the Event of Default from the
Company or any of the Holders.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
Section 11.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction.
Section 11.03 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series and of a specified tenor
are to be redeemed), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
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If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Securities
which have been converted during a selection of Securities to be redeemed shall
be treated by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 11.04 Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) in the case of any Securities that are convertible
pursuant to Article XV, the conversion price or rate, the date on which
the right to convert the principal of the Securities to be redeemed
will terminate and the place or places where such Securities may be
surrendered for conversion,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price,
(7) that the redemption is for a sinking fund, if such is the
case, and
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(8) applicable CUSIP Numbers.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and shall
be irrevocable.
Section 11.05 Deposit of Redemption Price.
Prior to 10 am, New York City time, on any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date other than any Securities called for
redemption on that date which have been converted prior to the date of such
deposit.
If any Security called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 3.07) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
Section 11.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 3.01, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.07 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Subsidiary Guarantors shall execute their Subsidiary Guarantees to be
endorsed on, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE XII
SINKING FUNDS
Section 12.01 Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 12.02 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any Securities previously called for redemption) and (2) may apply
as a credit Securities of a series which have been converted pursuant to Article
XV or which have been redeemed either at the election of the Company pursuant to
the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officer's Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 12.02, and will also deliver to the Trustee
any Securities to be so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 11.03 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 11.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 11.06 and 11.07.
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ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01 Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option by Board Resolution at
any time, to have either Section 13.02 or Section 13.03 applied to the
Outstanding Securities of any series designated pursuant to Section 3.01 as
being defeasible pursuant to this Article XIII (hereinafter called a "Defeasible
Series"), upon compliance with the conditions set forth below in this Article
XIII; provided that Section 13.02 shall not apply to any series of Securities
that is convertible into Common Stock as provided in Article XV or convertible
into or exchangeable for any other securities pursuant to Section 3.01(18).
Section 13.02 Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section
13.01 to have this Section 13.02 applied to the Outstanding Securities of any
Defeasible Series, the Company shall be deemed to have been discharged from its
obligations, and the provisions of Article XIV shall cease to be effective, with
respect to the Outstanding Securities of such series and the Subsidiary
Guarantors shall be deemed to have been discharged from their obligations with
respect to their Subsidiary Guarantees for such Outstanding Securities, as
provided in this Section on and after the date the conditions set forth in
Section 13.04 are satisfied (hereinafter called "Defeasance") and the Trustee
shall deliver to the Company and the Subsidiary Guarantors appropriate
instruments of satisfaction, discharge and release. For this purpose, such
Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities of such series
and to have satisfied all its other obligations under the Securities of such
series and this Indenture, and the Subsidiary Guarantors shall be deemed to have
satisfied all of their obligations under their Subsidiary Guarantees and this
Indenture insofar as the Securities of such series are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of
Securities of such series to receive, solely from the trust fund described in
Section 13.04 and as more fully set forth in such Section, payments in respect
of the principal of and any premium and interest on such Securities of such
series when payments are due, (2) the Company's obligations with respect to the
Securities of such series under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (3)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
(4) this Article XIII. Subject to compliance with this Article XIII, the Company
may exercise its option provided in Section 13.01 to have this Section 13.02
applied to the Outstanding Securities of any Defeasible Series notwithstanding
the prior exercise of its option provided in Section 13.01 to have Section 13.03
applied to the Outstanding Securities of such series.
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Section 13.03 Covenant Defeasance.
Upon the Company's exercise of the option provided in Section
13.01 to have this Section 13.03 applied to the Outstanding Securities of any
Defeasible Series, (1) the Company shall be released from its obligations under
Section 8.01 and Section 10.04 and the Subsidiary Guarantors shall be released
from their obligations under Section 8.02 and Article XIV, and (2) the
occurrence of any event specified in Sections 5.01(3), 5.01(5) (with respect to
any of Sections 8.01, 8.02 and 10.04), 5.01(6) and 5.01(9) shall be deemed not
to be or result in an Event of Default and (3) the provisions of Article XIV
shall cease to be effective, in each case with respect to the Outstanding
Securities of such series as provided in this Section on and after the date the
conditions set forth in Section 13.04 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means that
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 5.01(5)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and the Securities of
such series shall be unaffected thereby. In addition, Covenant Defeasance means
that each Subsidiary Guarantor, if any, shall be released from its obligations
under its Subsidiary Guarantee to the extent that the Company is released from
its obligations under this Indenture.
Section 13.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 13.02 or Section 13.03 to the Outstanding Securities of any Defeasible
Series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 6.09 and agrees to comply with the
provisions of this Article XIV applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of Outstanding Securities of such series, (A) money in an
amount, or (B) U.S. Government Obligations that through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof, in each
case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and any premium and interest on the
Securities of such series on the respective Stated Maturities, in
accordance with the terms of this Indenture and the Securities of such
series. As used herein, "U.S. Government Obligation" means (x) any
security that is (i) a direct obligation of the United States of
America for the payment of which full faith and credit of the United
States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States
of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the
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Securities Act of 1933, as amended) as custodian with respect to any
U.S. Government Obligation specified in Clause (x) and held by such
custodian for the account of the holder of such depositary receipt, or
with respect to any specific payment of principal of or interest on any
such U.S. Government Obligation, provided that (except as required by
law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal or interest evidenced by such
depositary receipt.
(2) In the case of an election under Section 13.02, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
date first set forth hereinabove, there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to the
effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize
gain or loss for Federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with respect to the
Securities of such series and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 13.03, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Outstanding Securities of such
series will not recognize gain or loss for Federal income tax purposes
as a result of the deposit and Covenant Defeasance to be effected with
respect to the Securities of such series and will be subject to Federal
income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit and Covenant Defeasance were not
to occur.
(4) No Event of Default or event that (after notice or lapse
of time or both) would become an Event of Default shall have occurred
and be continuing at the time of such deposit or, with regard to any
Event of Default or any such event specified in Sections 5.01(7) and
(8), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(5) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(6) No event or condition shall exist that, pursuant to the
provisions of Article XIV, would prevent the Company from making
payments of the principal of (and any premium) or interest on the
Securities of such series on the date of such deposit or at any time on
or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until such
90th day shall have ended).
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(7) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
Section 13.05 Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee or other qualifying trustee (solely
for purposes of this Section and Section 13.06, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section 13.04
in respect of the Securities of any Defeasible Series shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities of
such series and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of Securities of such series, of all sums
due and to become due thereon in respect of principal and any premium and
interest, but money so held in trust need not be segregated from other funds
except to the extent required by law.
The Company and the Subsidiary Guarantors (on a joint and
several basis) shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 13.04 or the principal and interest received in respect
thereof other than any such tax, fee or other charge that by law is for the
account of the Holders of Outstanding Securities.
Anything in this Article XIII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 13.04 with respect to Securities of any Defeasible Series that, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
Section 13.06 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article XIII with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series and
such Subsidiary Guarantor's obligation under its Subsidiary Guarantee and this
Indenture shall be revived and reinstated as though no deposit had occurred
pursuant to this Article XIII with respect to Securities of such series until
such time as the Trustee or Paying Agent is permitted to apply all money held in
trust pursuant to Section 13.05 with respect to Securities of such series in
accordance with this Article XIII; provided, however, that if the Company or a
Subsidiary Guarantor makes any payment of principal of or any premium or
interest on any Security of such series following the reinstatement of its
obligations, the Company or the Subsidiary Guarantor, as the case may be, shall
be subrogated to the rights of the Holders of Securities of such series to
receive such payment from the money so held in trust.
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ARTICLE XIV
SUBSIDIARY GUARANTEE
Section 14.01 Subsidiary Guarantee.
Each of the Subsidiary Guarantors hereby jointly and severally
unconditionally Guarantees to each Holder of a Security of a series as to which
it is a Subsidiary Guarantor authenticated and delivered by the Trustee, and to
the Trustee on behalf of such Holder, the due and punctual payment of the
principal of (and premium, if any) and interest on such Security when and as the
same shall become due and payable, whether at the Stated Maturity, by
acceleration, call for redemption, purchase or otherwise, in accordance with the
terms of such Security and of this Indenture. In case of the failure of the
Company punctually to make any such payment, each of the Subsidiary Guarantors
hereby jointly and severally agrees to cause such payment to be made punctually
when and as the same shall become due and payable, whether at the Stated
Maturity or by acceleration, call for redemption, purchase or otherwise, and as
if such payment were made by the Company.
Each of the Subsidiary Guarantors hereby jointly and severally agrees
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of such Security or this Indenture, the
absence of any action to enforce the same, any exchange, release or
non-perfection of any Lien on any collateral for, or any release or amendment or
waiver of any term of any other Guarantee of, or any consent to departure from
any requirement of any other Guarantee of all or any of the Securities, the
election by the Trustee or any of the Holders in any proceeding under Chapter 11
of Title 11 of the United States Code (the "Bankruptcy Code") of the application
of Section 1111(b)(2) of the Bankruptcy Code, any borrowing or grant of a
security interest by the Company, as debtor-in-possession, under Section 364 of
the Bankruptcy Code, the disallowance, under Section 502 of the Bankruptcy Code,
of all or any portion of the claims of the Trustee or any of the Holders for
payment of any of the Securities, any waiver or consent by the Holder of such
Security or by the Trustee with respect to any provisions thereof or of this
Indenture, the obtaining of any judgment against the Company or any action to
enforce the same or any other circumstances which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each of the Subsidiary
Guarantors hereby waives the benefits of diligence, presentment, demand for
payment, any requirement that the Trustee or any of the Holders protect, secure,
perfect or insure any security interest in or other Lien on any property subject
thereto or exhaust any right or take any action against the Company or any other
Person or any collateral, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to such Security or the
Indebtedness evidenced thereby and all demands whatsoever, and covenants that
this Subsidiary Guarantee will not be discharged in respect of such Security
except by complete performance of the obligations contained in such Security and
in this Subsidiary Guarantee. Each of the Subsidiary Guarantors hereby agrees
that, in the event of a default in payment of principal (or premium, if any) or
interest on such Security, whether at their Stated Maturity, by acceleration,
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call for redemption, purchase or otherwise, legal proceedings may be instituted
by the Trustee on behalf of, or by, the Holder of such Security, subject to the
terms and conditions set forth in this Indenture, directly against each of the
Subsidiary Guarantors to enforce this Subsidiary Guarantee without first
proceeding against the Company. Each Subsidiary Guarantor agrees that if, after
the occurrence and during the continuance of an Event of Default with respect to
the Securities of the series as to which it is a Subsidiary Guarantor, the
Trustee or any of the Holders are prevented by applicable law from exercising
their respective rights to accelerate the maturity of the Securities of such
series, to collect interest on the Securities of such series, or to enforce or
exercise any other right or remedy with respect to the Securities of such
series, or the Trustee or the Holders are prevented from taking any action to
realize on any collateral, such Subsidiary Guarantor agrees to pay to the
Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
The indebtedness evidenced by each Subsidiary Guarantee of a Subsidiary
Guarantor is, to the extent provided in this Indenture, subordinate and subject
in right of payment to the prior payment in full of all Senior Indebtedness of
such Subsidiary Guarantor, and the Subsidiary Guarantees are issued subject to
the provisions of this Indenture with respect thereto. Each Holder of such
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
Each Subsidiary Guarantor shall be subrogated to all rights of the
Holders of the Securities upon which its Subsidiary Guarantee is endorsed
against the Company in respect of any amounts paid by such Subsidiary Guarantor
on account of such Security pursuant to the provisions of its Subsidiary
Guarantee or this Indenture; provided, however, that no Subsidiary Guarantor
shall be entitled to enforce or to receive any payments arising out of, or based
upon, such right of subrogation until the principal of (and premium, if any) and
interest on all Securities issued hereunder as to which such Subsidiary
Guarantor is a Subsidiary Guarantor shall have been paid in full.
Each Subsidiary Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Securities, whether as a "voidable
preference," "fraudulent transfer," or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Securities shall, to
the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
The Subsidiary Guarantors shall have the right to seek contribution
from any non-paying Subsidiary Guarantor so long as the exercise of such right
does not impair the rights of the Holders under this Subsidiary Guarantee.
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Section 14.02 Execution and Delivery of Subsidiary Guarantees.
The Subsidiary Guarantees to be endorsed on the Securities of any
series shall include the terms of the Subsidiary Guarantee set forth in Section
14.01 and any other terms that may be set forth in the form established pursuant
to Section 2.06. Each of the Subsidiary Guarantors hereby agrees to execute its
Subsidiary Guarantee, in a form established pursuant to Section 2.06, to be
endorsed on each Security as to which it is a Subsidiary Guarantor authenticated
and delivered by the Trustee.
The Subsidiary Guarantee shall be executed on behalf of each respective
Subsidiary Guarantor by any one of such Subsidiary Guarantor's Chairman of the
Board, Vice Chairman of the Board, President, Vice President or other person
duly authorized by the Board of Directors of such Subsidiary Guarantor, attested
by its Secretary or Assistant Secretary. The signature of any or all of these
persons on the Subsidiary Guarantee may be manual or facsimile.
A Subsidiary Guarantee bearing the manual or facsimile signature of
individuals who were at any time the proper officers of a Subsidiary Guarantor
shall bind such Subsidiary Guarantor, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of the Security on which such Subsidiary Guarantee is endorsed or did
not hold such offices at the date of such Subsidiary Guarantee.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee
endorsed thereon on behalf of the Subsidiary Guarantors. Each of the Subsidiary
Guarantors hereby jointly and severally agrees that its Subsidiary Guarantee set
forth in Section 14.01 shall remain in full force and effect notwithstanding any
failure to endorse a Subsidiary Guarantee on any Security.
Section 14.03 Subsidiary Guarantors May Consolidate, Etc., on Certain Terms.
Except as set forth in Section 14.04 and in Article VIII and the terms
of the Securities, nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation, or merger of a Subsidiary Guarantor
with or into the Company or another Subsidiary Guarantor or shall prevent any
conveyance, transfer or lease of the property and assets of a Subsidiary
Guarantor substantially as an entirety to the Company or another Subsidiary
Guarantor.
Section 14.04 Release of Subsidiary Guarantors.
(a) Concurrently with any consolidation, or merger of a
Subsidiary Guarantor or any conveyance, transfer or lease of the property of a
Subsidiary Guarantor as an entirety or substantially as an entirety, in each
case as permitted by Section 14.03 hereof, and upon delivery by the Company to
the Trustee of an Officer's Certificate and an Opinion of Counsel to the effect
that such consolidation, merger, conveyance, transfer or lease was made in
accordance with Section 14.03 hereof, the Trustee shall execute any documents
reasonably required in order to acknowledge the release of such Subsidiary
Guarantor from its obligations under its Subsidiary Guarantee endorsed on the
Securities and under this Article XIV. Any Subsidiary Guarantor not released
from its obligations under its Subsidiary Guarantee endorsed on the Securities
and under this Article XIV shall remain liable for the full amount of principal
of (and premium, if any) and interest on the Securities of a series as to which
it is a Subsidiary Guarantor and for the other obligations of a Subsidiary
Guarantor under its Subsidiary Guarantee endorsed on such Securities and under
this Article XIV.
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(b) Concurrently with the defeasance of the Securities under
Section 13.02 hereof, the Subsidiary Guarantors shall be released from all of
their obligations under their Subsidiary Guarantees endorsed on the Securities
and under this Article XIV, without any action on the part of the Trustee or any
Holder of Securities.
(c) Upon the sale or disposition (by merger or otherwise) of
any Subsidiary Guarantor by the Company or any Subsidiary of the Company
constituting an asset sale permitted under the terms of the Securities of any
series to a Person other than the Company or a Subsidiary Guarantor of the
Company and which is otherwise in compliance with the terms of this Indenture
and the terms of the Securities of such series, such Subsidiary Guarantor shall
automatically be released from all obligations under its Subsidiary Guarantees
endorsed on the Securities of such series and under this Article XIV, provided,
that all obligations of such Subsidiary Guarantor with respect to any
Indebtedness of the Company or any Subsidiary of the Company shall also
terminate upon such transaction.
Section 14.05 Additional Subsidiary Guarantors.
(a) The Company may cause any of its Subsidiaries to become a
Subsidiary Guarantor with respect to the Securities by executing and delivering
to the Trustee (a) a supplemental indenture, in form and substance satisfactory
to the Trustee, which subjects such Person to the provisions (including the
representations and warranties) of this Indenture as a Subsidiary Guarantor and
(b) an Opinion of Counsel to the effect that such supplemental indenture has
been duly authorized and executed by such Person and constitutes the legal,
valid, binding and enforceable obligation of such Person (subject to such
customary exceptions concerning creditors' rights and equitable principles as
may be acceptable to the Trustee in its discretion).
(b) The Company will cause any Subsidiary of the Company that
is required under the terms of the Securities of any series to become a
Subsidiary Guarantor to execute a supplemental indenture pursuant to which it
shall become a Subsidiary Guarantor.
ARTICLE XV
CONVERSION OF SECURITIES
Section 15.01 Applicability; Conversion Privilege and Conversion Price.
Securities of any series which are convertible into Common
Stock of the Company shall be convertible in accordance with their terms and
(except as otherwise specified as contemplated by Section 3.01 for Securities of
any series) in accordance with this Article.
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Subject to and upon compliance with the provisions of this
Article, at the option of the Holder thereof, any Security or any portion of the
outstanding principal amount thereof which is $1,000 or an integral multiple of
$1,000 may be converted at the principal amount thereof, or of such portion
thereof, into fully paid and nonassessable shares (calculated as to each
conversion to the nearest 1/100 of a share) of Common Stock of the Company at
the conversion price, determined as hereinafter provided, in effect at the time
of conversion. Such conversion right shall expire at the close of business on
the date specified for Securities of such series. In case a Security or portion
thereof is called for redemption at the election of the Company, such conversion
right in respect of the Security or portion so called shall expire at the close
of business on the 10th calendar day before the Redemption Date, unless the
Company defaults in making the payment due upon redemption.
The price at which shares of Common Stock shall be delivered
upon conversion (herein called the "conversion price") shall be the price
specified in relation to Securities of such series pursuant to Section 3.01, as
it shall be adjusted in certain instances as provided in this Article.
Section 15.02 Exercise of Conversion Price.
In order to exercise the conversion privilege, the Holder of
any Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency of the Company
maintained for that purpose pursuant to Section 10.02, accompanied by written
notice to the Company (which shall be substantially in the form set forth in
Section 2.03) at such office or agency that the Holder elects to convert such
Security or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted. Securities surrendered for
conversion during the period from the close of business on any Regular Record
Date next preceding any Interest Payment Date to the opening of business on such
Interest Payment Date shall (except in the case of Securities or portions
thereof which have been called for redemption on a Redemption Date within such
period) be accompanied by payment in funds acceptable to the Company of an
amount equal to the interest payable on such Interest Payment Date on the
principal amount of Securities being surrendered for conversion. Subject to the
provisions of Section 3.07 relating to the payment of Defaulted Interest by the
Company, the interest payment with respect to a Security called for redemption
on a Redemption Date during the period from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date shall be payable on such Interest Payment Date to
the Holder of such Security at the close of business on such Regular Record Date
notwithstanding the conversion of such Security after such Regular Record Date
and prior to such Interest Payment Date, and the Holder converting such Security
need not include a payment of such interest payment amount upon surrender of
such Security for conversion. Except as provided in the preceding sentence and
subject to the final paragraph of Section 3.07, no payment or adjustment shall
be made upon any conversion on account of any interest accrued on the Securities
surrendered for conversion or on account of any dividends on the Common Stock
issued upon conversion.
Securities shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such Securities for
conversion in accordance with the foregoing provisions, and at such time the
rights of the Holders of such Securities as Holders shall cease, and the Person
or Persons entitled to receive the Common Stock issuable upon conversion shall
be treated for all purposes as the record holder or holders of such Common Stock
at such time. As promptly as practicable on or after the conversion date, the
Company shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 15.03.
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In the case of any Security which is converted in part only,
upon such conversion the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company, a
new Security or Securities of authorized denominations in aggregate principal
amount equal to the unconverted portion of the principal amount of such
Security.
Section 15.03 Fractions of Shares.
No fractional shares of Common Stock shall be issued upon
conversion of Securities. If more than one Security shall be surrendered for
conversion at one time by the same Holder, the number of full shares which shall
be issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the daily closing
price per share of Common Stock (consistent with Section 15.04(6) below) at the
close of business on the day of conversion.
Section 15.04 Adjustment of Conversion Price.
(1) In case the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company in Common
Stock, the conversion price in effect at the opening of business on the
day following the date fixed for determination of stockholders entitled
to receive such dividend or other distribution shall be reduced by
multiplying such conversion price by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution, such
reduction to become effective immediately after the opening of business
on the day following the date fixed for such determination. For the
purposes of this paragraph (1), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights or warrants to all
holders of its Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the current
market price per share (determined as provided in paragraph (6) of this
Section) of the Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights or warrants (other than
pursuant to a dividend reinvestment plan), the conversion price in
effect at the opening of business on the day following the date fixed
for such determination shall be reduced by multiplying such conversion
price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Common Stock
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which the aggregate of the offering price of the total number of shares
of Common Stock so offered for subscription or purchase would purchase
at such current market price and the denominator shall be the number of
shares of Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Common Stock
so offered for subscription or purchase, such reduction to become
effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of
this paragraph (2), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not issue any rights or warrants in respect of shares of
Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
conversion price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately reduced, and, conversely, in case outstanding shares
of Common Stock shall each be combined into a smaller number of shares
of Common Stock, the conversion price in effect at the opening of
business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness or assets (including securities, but excluding any rights
or warrants referred to in paragraph (2) of this Section, any dividend
or distribution paid in cash out of the earned surplus of the Company
and any dividend or distribution referred to in paragraph (1) of this
Section), the conversion price shall be adjusted so that the same shall
equal the price determined by multiplying the conversion price in
effect immediately prior to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution
by a fraction of which the numerator shall be the current market price
per share (determined as provided in paragraph (6) of this Section) of
the Common Stock on the date fixed for such determination less the then
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution
filed with the Trustee) of the portion of the assets or evidences of
indebtedness so distributed applicable to one share of Common Stock and
the denominator shall be such current market price per share of the
Common Stock, such adjustment to become effective immediately prior to
the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such distribution.
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(5) The reclassification of Common Stock into securities other
than Common Stock (other than any reclassification upon a consolidation
or merger to which Section 15.11 applies) shall be deemed to involve
(a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of stockholders entitled to receive such distribution"
and "the date fixed for such determination" within the meaning of
paragraph (4) of this Section), and (b) a subdivision or combination,
as the case may be, of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the number of shares of
Common Stock outstanding immediately thereafter (and the effective date
of such reclassification shall be deemed to be "the day upon which such
subdivision becomes effective" or "the day upon which such combination
becomes effective", as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of
paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2)
and (4) of this Section, the current market price per share of Common
Stock on any day shall be deemed to be the average of the daily closing
prices for the five consecutive trading days (i.e., Business Days on
which the Common Stock is traded) selected by the Board of Directors
commencing not more than 20 trading days before, and ending not later
than, the earlier of the day in question and the day before the "ex"
date with respect to the issuance or distribution requiring such
computation. For this purpose, the term "`ex' date", when used with
respect to any issuance or distribution, shall mean the first date on
which the Common Stock trades regular way on the applicable exchange or
in the applicable market without the right to receive such issuance or
distribution. The closing price for each day shall be the reported last
sale price regular way or, in case no such reported sale takes place on
such day, the average of the reported closing bid and asked prices
regular way, in either case on the New York Stock Exchange or, if the
Common Stock is not listed or admitted to trading on such Exchange, on
the principal national securities exchange on which the Common Stock is
listed or admitted to trading or, if not listed or admitted to trading
on any national securities exchange, on the Nasdaq Stock Market or, if
the Common Stock is not listed or admitted to trading on any national
securities exchange or quoted on the Nasdaq Stock Market, the average
of the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from time
to time by the Board of Directors for that purpose.
(7) The Company may make such reductions in the conversion
price, in addition to those required by paragraphs (1), (2), (3) and
(4) of this Section, as it considers to be advisable in order to avoid
or diminish any income tax to any holders of shares of Common Stock
resulting from any dividend or distribution of stock or issuance of
rights or warrants to purchase or subscribe for stock or from any event
treated as such for income tax purposes or for any other reasons. The
Company shall have the power to resolve any ambiguity or correct any
error in this paragraph (7) and its actions in so doing shall be final
and conclusive.
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(8) No adjustment in the conversion price shall be required
unless such adjustment would require an increase or decrease of at
least one percent in such conversion price; provided, however, that any
adjustment which by reason of this paragraph (8) is not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Article shall be made to the
nearest cent or to the nearest 1/100 of a share, as the case may be.
Section 15.05 Notice of Adjustments of Conversion Price.
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion price in
accordance with Section 15.04 and shall prepare a certificate
signed by the Treasurer of the Company setting forth the
adjusted conversion price and showing in reasonable detail the
facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency
maintained for the purpose of conversion of Securities
pursuant to Section 10.02; and
(b) a notice stating that the conversion price has been adjusted
and setting forth the adjusted conversion price shall
forthwith be required, and as soon as practicable after it is
required, such notice shall be mailed by the Company to all
Holders at their last addresses as they shall appear in the
Security Register.
Section 15.06 Notice of Certain Corporate Action.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in
cash out of its earned surplus; or
(b) the Company shall authorize the granting to the holders of its
Common Stock of rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of any
other rights; or
(c) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding
shares of Common Stock), or of any consolidation, merger or
share exchange to which the Company is a party and for which
approval of any stockholders of the Company is required, or of
the sale or transfer of all or substantially all of the assets
of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 10.02, and shall
cause to be mailed to all Holders at their last addresses as they shall appear
in the Security Register, at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, rights or warrants, or, if
a record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights or warrants are to
be determined, or (y) the date on which such reclassification, consolidation,
merger, share exchange, sale, transfer, dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, transfer,
dissolution, liquidation or winding up. Neither the failure to give such notice
nor any defect therein shall affect the legality or validity of the proceedings
described in clauses (a) through (d) of this Section 15.06. If at the time the
Trustee shall not be the conversion agent, a copy of such notice shall also
forthwith be filed by the Company with the Trustee.
76
Not less than seven days prior to any date fixed for the
determination of stockholders entitled to receive such distribution, the Company
shall cause to be filed at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 10.02, and shall cause to be mailed
to all Holders at their last addresses as they shall appear in the Security
Register, a notice stating the date on which such determination is to be made,
and briefly describing the import thereof. If at the time the Trustee shall not
be the conversion agent, a copy of such notice shall also forthwith be filed by
the Company with the Trustee.
Section 15.07 Company to Reserve Common Stock.
The Company shall at all times reserve and keep available out
of its authorized but unissued Common Stock, for the purpose of effecting the
conversion of Securities, the full number of shares of Common Stock then
issuable upon the conversion of all Outstanding Securities.
Section 15.08 Taxes on Conversions.
The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of Common Stock in a name other than that of the Holder
of the Security or Securities to be converted, and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to the
Company the amount of any such tax, or has established to the satisfaction of
the Company that such tax has been paid.
Section 15.09 Covenant as to Common Stock.
The Company covenants that all shares of Common Stock which
may be issued upon conversion of Securities will upon issue be fully paid and
nonassessable and, except as provided in Section 15.08, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
Section 15.10 Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to
the Trustee to be cancelled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 3.09.
77
Section 15.11 Provisions in Case of Consolidation, Merger or Sale of Assets.
In case of any consolidation of the Company with, or merger of
the Company into, any other Person, any merger of another Person into the
Company (other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock of
the Company) or any sale or transfer of all or substantially all of the assets
of the Company, the Person formed by such consolidation or resulting from such
merger or which acquires such assets, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each convertible Security then outstanding shall have the right thereafter,
during the period such Security shall be convertible as specified in Section
15.01, to convert such Security only into the kind and amount of securities,
cash and other property receivable upon such consolidation, merger, sale or
transfer by a holder of the number of shares of Common Stock of the Company into
which such Security might have been converted immediately prior to such
consolidation, merger, sale or transfer, assuming such holder of Common Stock of
the Company failed to exercise his rights of election, if any, as to the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer (provided that if the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer is not the same for each share of Common Stock of the Company
in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section the kind and amount
of securities, cash and other property receivable upon such consolidation,
merger, sale or transfer by each non-electing share shall be deemed to be the
kind and amount so receivable per share by a plurality of the non-electing
shares). Such supplemental indenture shall provide for adjustments which, for
events subsequent to the effective date of such supplemental indenture, shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or transfers.
Section 15.12 Responsibility of Trustee.
Neither the Trustee nor any conversion agent shall at any time
be under any duty or responsibility to any Holder of Securities to determine
whether any fact exists which may require any adjustment of the conversion
price, or with respect to the nature or extent of any such adjustment when made,
or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. Neither the Trustee nor
any conversion agent shall be accountable with respect to the registration,
validity or value (or the kind or amount) of any shares of Common Stock, or of
any securities or property, which may at any time be issued or delivered upon
the conversion of any Security; and neither the Trustee nor any conversion agent
makes any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to issue or
transfer or deliver any Common Stock or stock certificates or other securities
or property or to make any cash payment upon the surrender of any Security for
the purpose of conversion or to comply with any of the covenants of the Company
contained in this Article XV.
The Trustee makes no representations as to the validity or
sufficiency of this Indenture; the recitals and statements herein are deemed to
be those of the Company and not of the Trustee.
78
ARTICLE XVI
SUBORDINATION OF SECURITIES
Section 16.01 Securities Subordinate to Senior Indebtedness.
Each of the Company and each Subsidiary Guarantor covenants
and agrees, and each Holder of a Security, by his acceptance thereof, likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article, the indebtedness represented by the Securities and the
payment of the principal of (and premium, if any) and interest on each and all
of the Securities are hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness of the Company
and the Subsidiary Guarantors. The terms of the subordination provisions
described in this Article XVI with respect to the Company's Obligations under
the Securities apply equally to each Subsidiary Guarantor and the Obligations of
such Subsidiary Guarantor under its respective Subsidiary Guarantee.
Section 16.02 Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company, a
Subsidiary Guarantor or to their respective creditors, as such, or to their
respective assets, or (b) any liquidation, dissolution or other winding up of
the Company or any Subsidiary Guarantor, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the
Company or any Subsidiary Guarantor, then and in any such event the holders of
Senior Indebtedness shall be entitled to receive payment in full of all amounts
due or to become due on or in respect of all Senior Indebtedness, or provision
shall be made for such payment in money or money's worth, before the Holders of
the Securities are entitled to receive any payment on account of principal of
(or premium, if any) or interest on the Securities, and to that end the holders
of Senior Indebtedness shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or character, whether
in cash, property or securities, which may be payable or deliverable in respect
of the Securities in any such case, proceeding, dissolution, liquidation or
other winding up or event.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company or any Subsidiary Guarantor of
any kind or character, whether in cash, property or securities, before all
Senior Indebtedness is paid in full or payment thereof provided for, and if such
fact shall, at or prior to the time of such payment or distribution, have been
made known to the Trustee or, as the case may be, such Holder, then and in such
event such payment or distribution shall be paid over or delivered forthwith to
the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Company or
any Subsidiary Guarantor for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
79
For purposes of this Article only, the words "cash, property
or securities" shall not be deemed to include shares of stock of the Company or
a Subsidiary Guarantor as reorganized or readjusted, or securities of the
Company or a Subsidiary Guarantor or any other corporation provided for by a
plan of reorganization or readjustment which are subordinated in right of
payment to all Senior Indebtedness which may at the time be outstanding to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Company or a Subsidiary Guarantor with, or the merger of the Company or a
Subsidiary Guarantor into, another Person or the liquidation or dissolution of
the Company or a Subsidiary Guarantor following the conveyance or transfer of
its properties and assets substantially as an entirety to another Person upon
the terms and conditions set forth in Article VIII shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the benefit
of creditors or marshalling of assets and liabilities of the Company or a
Subsidiary Guarantor for the purposes of this Section if the Person formed by
such consolidation or into which the Company or a Subsidiary Guarantor is merged
or which acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article VIII.
Section 16.03 Prior Payment to Senior Indebtedness Upon Acceleration of
Securities.
In the event that any Securities are declared due and payable
before their Stated Maturity, then and in such event the holders of Senior
Indebtedness outstanding at the time such Securities so become due and payable
shall be entitled to receive payment in full of all amounts due or to become due
on or in respect of such Senior Indebtedness, or provision shall be made for
such payment in money or money's worth, before the Holders of the Securities are
entitled to receive any payment by the Company or a Subsidiary Guarantor on
account of the principal of (or premium, if any) or interest on the Securities
or on account of the purchase or other acquisition of Securities; provided,
however, that nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with Article XII by delivering and crediting
pursuant to Section 12.02 Securities which have been acquired (upon redemption
or otherwise) prior to such default or which have been converted pursuant to
Article XV.
In the event that, notwithstanding the foregoing, the Company
or a Subsidiary Guarantor shall make any payment to the Trustee or the Holder of
any Security prohibited by the foregoing provisions of this Section, and if such
fact shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company or to a Subsidiary
Guarantor.
The provisions of this Section shall not apply to any payment
with respect to which Section 16.02 would be applicable.
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Section 16.04 No Payment When Senior Indebtedness in Default.
(a) In the event and during the continuation of any default in
the payment of principal of (or premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto, or in the
event that any event of default with respect to any Senior Indebtedness shall
have occurred and be continuing and shall have resulted in such Senior
Indebtedness becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, unless and until such
event of default shall have been cured or waived or shall have ceased to exist
and such acceleration shall have been rescinded or annulled, or (b) in the event
any judicial proceeding shall be pending with respect to any such default in
payment or event of default, then no payment shall be made by the Company nor by
any Subsidiary Guarantor on account of principal of (or premium, if any) or
interest on the Securities or on account of the purchase or other acquisition of
Securities; provided, however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article XII by
delivering and crediting pursuant to Section 12.02 Securities which have been
acquired (upon redemption or otherwise) prior to such default or which have been
converted pursuant to Article XV.
In the event that, notwithstanding the foregoing, the Company
or a Subsidiary Guarantor shall make any payment to the Trustee or the Holder of
any Security prohibited by the foregoing provisions of this Section, and if such
fact shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company or to a Subsidiary
Guarantor.
The provisions of this Section shall not apply to any payment
with respect to which Section 16.02 would be applicable.
Section 16.05 Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities shall prevent the Company or any
Subsidiary Guarantor, at any time except during the pendency of any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of the
Company or any Subsidiary Guarantor referred to in Section 16.02 or under the
conditions described in Section 16.03 or 16.04, from making payments at any time
of principal of (and premium, if any) or interest on the Securities.
Section 16.06 Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated (equally and ratably with the
holders of all indebtedness of the Company and each Subsidiary Guarantor which
by its express terms is subordinated to indebtedness of the Company and each
Subsidiary Guarantor to substantially the same extent as the Securities are
subordinated and is entitled to like rights of subrogation) to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Company and any Subsidiary Guarantor, its
respective creditors other than holders of Senior Indebtedness and the Holders
of the Securities, be deemed to be a payment or distribution by the Company or
any Subsidiary Guarantor to or on account of the Senior Indebtedness.
81
Section 16.07 Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the Company or any Subsidiary
Guarantor, their respective creditors other than holders of Senior Indebtedness
and the Holders of the Securities, the obligations of the Company and the
Subsidiary Guarantors, which are absolute and unconditional (and which, subject
to the rights under this Article of the holders of Senior Indebtedness, are
intended to rank equally with all other general obligations of the Company and
the Subsidiary Guarantors), to pay to the Holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company and the Subsidiary Guarantors of
the Holders of the Securities and creditors of the Company and the Subsidiary
Guarantors other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
Section 16.08 Trustee to Effectuate Subordination.
Each holder of a Security 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 provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 16.09 No Waiver of Subordination Provisions.
No right of any present or future holder 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 any Subsidiary Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any non-compliance by the Company or any
Subsidiary Guarantor with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness or Senior Indebtedness of any
Subsidiary Guarantor ("Guarantor Senior Indebtedness") may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders of
the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness or Guarantor Senior Indebtedness, do any one or
more of the following: (a) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness or
Guarantor Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or Guarantor Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness or
Guarantor Senior Indebtedness is outstanding; (c) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness or Guarantor Senior Indebtedness; (c) release any Person liable in
any manner for the collection of Senior Indebtedness or Guarantor Senior
Indebtedness; and (d) exercise or refrain from exercising any rights against the
Company and any other Person.
82
Section 16.10 Notice to Trustee.
The Company and the Subsidiary Guarantors shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities or under any Subsidiary Guarantee. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company, a Subsidiary Guarantor, a holder of Senior Indebtedness or from any
trustee therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 6.01, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section at least
three Business Days prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without limitation, the payment
of the principal of (and premium, if any) or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
Subject to the provisions of Section 6.01, the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
83
Section 16.11 Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of either the
Company or a Subsidiary Guarantor referred to in this Article, the Trustee,
subject to the provisions of Section 6.01, and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
Section 16.12 Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness and shall not be liable to any such holders
if it shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to a Subsidiary Guarantor or to any other Person
cash, property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
Section 16.13 Rights of Trustee as Holder of Senior Indebtedness; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Indebtedness
which may at any 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 shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.07.
Section 16.14 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee.
Section 16.15 Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and
delivery of junior securities upon conversion of Securities in accordance with
Article XV shall not be deemed to constitute a payment or distribution on
account of the principal of or premium or interest on Securities or on account
of the purchase or other acquisition of Securities, and (2) the payment,
issuance or delivery of cash, property or securities (other than junior
securities) upon conversion of a Security shall be deemed to constitute payment
on account of the principal of such Security. For the purposes of this Section,
the term "junior securities" means (a) shares of any stock of any class of the
Company and (b) securities of the Company which are subordinated in right of
payment to all Senior Indebtedness which may be outstanding at the time of
issuance or delivery of such securities to substantially the same extent as, or
to a greater extent than, the Securities are so subordinated as provided in this
Article. Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the right, which is absolute and unconditional, of the Holder of any
Security to convert such Security in accordance with Article XV.
84
Section 16.16 Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from moneys or the proceeds of U.S. Government Obligations held in
trust under Article XIV by the Trustee for the payment of principal of, premium,
if any, and interest on the Securities from the date of deposit (if made in
compliance with this Indenture) shall not be subordinated to the prior payment
of any Senior Indebtedness or subject to the restraints set forth in this
Article, and none of the Holders of Securities shall be obligated to pay over
any such amount to the Company or any holder of Senior Indebtedness of the
Company or any other creditor of the Company.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
(Signature Pages to Follow)
85
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
INTERMAGNETICS GENERAL
CORPORATION
By___________________________
Name:
Title:
INVIVO CORPORATION,
AS SUBSIDIARY GUARANTOR
By: __________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
AS TRUSTEE
By: ___________________________
Name:
Title:
86
Intermagnetics General Corporation
Certain Sections of this Indenture relating to
Sections 3.10 through 3.18, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
ss. 310 (a)(1) ......................................................................... 6.10
(a)(2) ......................................................................... 6.10
(a)(3) ......................................................................... Not Applicable
(a)(4) ......................................................................... Not Applicable
(a)(5) ......................................................................... 6.10
(b) ......................................................................... 6.08
......................................................................... 6.10
(c) ......................................................................... Not Applicable
ss. 311 (a) ......................................................................... 6.11
(b) ......................................................................... 6.11
(c) ......................................................................... Not Applicable
ss. 312 (a) ......................................................................... 7.01
......................................................................... 7.02
(b) ......................................................................... 7.02
(c) ......................................................................... 7.02
ss. 313 (a) ......................................................................... 6.06
......................................................................... 7.03
(b) ......................................................................... 6.06
......................................................................... 7.03
(c) ......................................................................... 6.06
......................................................................... 7.03
(d) ......................................................................... 7.03
ss. 314 (a) ......................................................................... 7.04
(a)(4) ......................................................................... 1.01
......................................................................... 10.06
(b) ......................................................................... Not Applicable
(c)(1) ......................................................................... 10.2
(c)(2) ......................................................................... 10.2
(c)(3) ......................................................................... Not Applicable
(d) ......................................................................... Not Applicable
(e) ......................................................................... 10.2
ss. 315 (a) ......................................................................... 6.01
(b) ......................................................................... 6.05
(c) ......................................................................... 6.01
(d) ......................................................................... 6.01
(e) ......................................................................... 5.14
ss. 316 (a) ......................................................................... 10.1
(a)(1)(A) ......................................................................... 5.02
......................................................................... 5.12
(a)(1)(B) ......................................................................... 5.13
(a)(2) ......................................................................... Not Applicable
(b) ......................................................................... 5.08
(c) ......................................................................... 10.4
ss. 317 (a)(1) ......................................................................... 5.03
(a)(2) ......................................................................... 5.04
(b) ......................................................................... 10.03
ss. 318 (a) ......................................................................... 1.07
---------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
87
