AMARIN FINANCE LTD., as Issuer, AMARIN CORPORATION PLC, as Guarantor and [ ], as Trustee SUBORDINATED INDENTURE Dated as of _____________, _____
Exhibit 4.11
as
Issuer,
AMARIN
CORPORATION PLC,
as
Guarantor
and
[ ],
as Trustee
Dated
as
of _____________, _____
TABLE
OF CONTENTS
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Page
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ARTICLE
1.
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DEFINITIONS
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Section
1.01.
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Certain
Terms Defined
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1
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ARTICLE
2.
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SECURITIES
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Section
2.01.
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Forms
Generally
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5
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Section
2.02.
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Form
of Trustee’s Certification of Authentication
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6
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Section
2.03.
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Amount
Unlimited; Issuable in Series
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6
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Section
2.04.
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Authentication
and Delivery of Securities
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8
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Section
2.05.
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Execution
of Securities
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9
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Section
2.06.
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Certificate
of Authorization
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10
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Section
2.07.
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Denomination
and Date of Securities; Payments of Interest
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10
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Section
2.08.
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Registration,
Transfer and Exchange
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10
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Section
2.09.
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Mutilated,
Defaced, Destroyed, Lost and Stolen Securities
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11
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Section
2.10.
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Cancellation
of Securities
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12
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Section
2.11.
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Temporary
Securities
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12
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Section
2.12.
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CUSIP
Numbers, “ISINs” and Common Codes
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12
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ARTICLE
3.
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COVENANTS
OF THE ISSUER, THE GUARANTOR AND THE TRUSTEE
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Section
3.01.
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Payment
of Principal and Interest
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13
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Section
3.02.
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Offices
for Payments, etc
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13
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Section
3.03.
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Appointment
to Fill a Vacancy in Office of Trustee
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13
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Section
3.04.
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Paying
Agents
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13
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Section
3.05.
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Certificates
of the Issuer and the Guarantor
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14
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Section
3.06.
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Securityholders
Lists
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14
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Section
3.07.
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Reports
by the Issuer
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15
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Section
3.08.
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Reports
by the Trustee
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15
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Section
3.09.
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Calculation
of Original Issue Discount
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15
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ARTICLE
4.
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REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
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Section
4.01.
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Event
of Default; Acceleration of Maturity; Waiver of Default
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15
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Section
4.02.
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Collection
of Indebtedness by Trustee; Trustee May Prove Debt
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17
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Section
4.03.
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Application
of Proceeds
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19
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Section
4.04.
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Suits
for Enforcement
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20
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Section
4.05.
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Restoration
of Rights on Abandonment of Proceeding
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20
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Section
4.06.
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Limitations
on Suits by Securityholder
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20
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-i-
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Section
4.07.
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Unconditional
Right of Securityholders to Institute Certain Suits
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20
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Section
4.08.
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Powers
and Remedies Cumulative; Delay or Omission Not Waiver of
Default
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21
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Section
4.09.
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Control
by Securityholders
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21
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Section
4.10.
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Waiver
of Past Defaults
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21
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Section
4.11.
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Trustee
to Give Notice of Default, But May Withhold in Certain
Circumstances
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22
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Section
4.12.
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Right
of Court to Require Filing of Undertaking to Pay Costs
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22
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ARTICLE
5.
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CONCERNING
THE TRUSTEE
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Section
5.01.
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Duties
and Responsibilities of the Trustee; During Default; Prior to
Default
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22
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Section
5.02.
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Certain
Rights of the Trustee
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23
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Section
5.03.
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Trustee
Not Responsible for Recitals, Disposition of Securities or Application
of
Proceeds Thereof
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25
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Section
5.04.
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Trustee
and Agents May Hold Securities; Collections, etc
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25
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Section
5.05.
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Moneys
Held by Trustee
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25
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Section
5.06.
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Compensation
and Indemnification of Trustee and Its Prior Claim
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25
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Section
5.07.
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Right
of Trustee to Rely on Officers’ Certificate, etc
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26
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Section
5.08.
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Persons
Eligible for Appointment as Trustee
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26
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Section
5.09.
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Resignation
and Removal; Appointment of Successor Trustee
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26
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Section
5.10.
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Acceptance
of Appointment By Successor Trustee
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27
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Section
5.11.
|
Merger,
Conversion, Consolidation or Succession to Business of
Trustee
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28
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ARTICLE
6.
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CONCERNING
THE SECURITYHOLDERS
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Section
6.01.
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Evidence
of Action Taken by Securityholders
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28
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Section
6.02.
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Proof
of Execution of Instruments and of Holding of Securities; Record
Date
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28
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Section
6.03.
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Holders
to Be Treated as Owners
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29
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Section
6.04.
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Securities
Owned by Issuer Deemed Not Outstanding
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29
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Section
6.05.
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Right
of Revocation of Action Taken
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29
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ARTICLE
7.
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SUPPLEMENTAL
INDENTURES
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Section
7.01.
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Supplemental
Indentures Without Consent of Securityholders
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30
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Section
7.02.
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Supplemental
Indentures With Consent of Securityholders
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31
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Section
7.03.
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Effect
of Supplemental Indenture
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32
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Section
7.04.
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Documents
to Be Given to Trustee
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32
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Section
7.05.
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Notation
on Securities in Respect of Supplemental Indentures
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32
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ARTICLE
8.
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CONSOLIDATION,
MERGER, SALE OR CONVEYANCE
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Section
8.01.
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Issuer
May Consolidate, etc., on Certain Terms
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33
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-ii-
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Section
8.02.
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Successor
Substituted
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33
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Section
8.03.
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Guarantor
May Consolidate, etc., on Certain Terms
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33
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Section
8.04.
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Successor
Legal Entity Substituted for the Guarantor
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34
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Section
8.05.
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Opinion
of Counsel to Trustee
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34
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ARTICLE
9.
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SATISFACTION
AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
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Section
9.01.
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Satisfaction
and Discharge of Indenture
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34
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Section
9.02.
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Application
by Trustee of Funds Deposited for Payment of Securities
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37
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Section
9.03.
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Repayment
of Moneys Held by Paying Agent
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37
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Section
9.04.
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Return
of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years
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37
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ARTICLE
10.
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MISCELLANEOUS
PROVISIONS
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Section
10.01.
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Incorporators,
Stockholders, Members, Officers and Directors of Issuer and Guarantor
Exempt from Individual Liability
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38
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Section
10.02.
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Provisions
of Indenture for the Sole Benefit of Parties and
Securityholders
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38
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Section
10.03.
|
Successors
and Assigns of Issuer and Guarantor Bound by Indenture
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38
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Section
10.04.
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Notices
and Demands on Issuer, Trustee and Securityholders
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38
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Section
10.05.
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Officers’
Certificates and Opinions of Counsel; Statements to Be Contained
Therein
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39
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Section
10.06.
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Payments
Due on Saturdays, Sundays and Holidays
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40
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Section
10.07.
|
Conflict
of Any Provision of Indenture with Trust Indenture Act of
1939
|
40
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Section
10.08.
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New
York Law to Govern
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40
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Section
10.09.
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Counterparts
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40
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Section
10.10.
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Effect
of Headings
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41
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Section
10.11.
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Securities
in a Non-U.S. Currency
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41
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Section
10.12.
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Submission
to Jurisdiction
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41
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Section
10.13.
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Judgment
Currency
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41
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ARTICLE
11.
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REDEMPTION
OF SECURITIES AND SINKING FUNDS
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Section
11.01.
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Applicability
of Article
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42
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Section
11.02.
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Notice
of Redemption; Partial Redemptions
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42
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Section
11.03.
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Payment
of Securities Called for Redemption
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43
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Section
11.04.
|
Exclusion
of Certain Securities from Eligibility for Selection for
Redemption
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43
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Section
11.05.
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Mandatory
and Optional Sinking Funds
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44
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ARTICLE
12.
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GUARANTEE
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Section
12.01.
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The
Guarantee
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45
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-iii-
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Section
12.02.
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Net
Payments
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46
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Section
12.03.
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Guarantee
Unconditional, etc
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47
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Section
12.04.
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Reinstatement
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47
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Section
12.05.
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Subrogation
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48
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Section
12.06.
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Limitation
on Liability
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48
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Section
12.07.
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Assumption
by Guarantor
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48
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ARTICLE
13.
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SUBORDINATION
OF SECURITIES
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Section
13.01.
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Agreement
to Subordinate
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48
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Section
13.02.
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Payments
to Holders of Securities
|
48
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Section
13.03.
|
No
Payment When Senior Debt Is in Default
|
49
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Section
13.04.
|
Payment
Permitted in Certain Situations
|
50
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Section
13.05.
|
Subrogation
to Rights of Holders of Senior Debt
|
50
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Section
13.06.
|
Provisions
Solely to Define Relative Rights
|
50
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Section
13.07.
|
Trustee
to Effectuate Subordination
|
51
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Section
13.08.
|
No
Waiver of Subordination Provisions
|
51
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Section
13.09.
|
Notice
to Trustee
|
51
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Section
13.10.
|
Reliance
on Judicial Order or Certificate of Liquidating Agent
|
51
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Section
13.11.
|
Trustee
Not Fiduciary for Holders of Senior Debt
|
52
|
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Section
13.12.
|
Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee’s
Rights
|
52
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Section
13.13.
|
Article
Applicable to Paying Agents
|
52
|
-iv-
THIS
INDENTURE, dated as of _____________, _____, among AMARIN FINANCE LTD., a
Bermuda exempted company limited by shares (the “Issuer”), AMARIN CORPORATION
PLC, a public limited company incorporated under the laws of England (the
“Guarantor”) and
[ ]
(the “Trustee”).
W
I T N E
S S E T H:
WHEREAS,
the Issuer has duly authorized the issue from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or
more
series (the “Securities”) up to such principal amount or amounts as may from
time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS,
the Issuer has duly authorized the execution and delivery of this Indenture
to
provide, among other things, for the issuance, authentication, delivery and
administration of the Securities;
WHEREAS,
the Issuer is a wholly owned subsidiary of the Guarantor;
WHEREAS,
for value received, the Guarantor has duly authorized the execution and delivery
of this Indenture to provide for the issuance of the Guarantee provided for
herein. All things necessary to make this Indenture a valid agreement of the
Guarantor, in accordance with its terms, have been done; and
WHEREAS,
all things necessary to make this Indenture a valid indenture and agreement
according to its terms have been done;
NOW,
THEREFORE:
In
consideration of the premises and the purchases of the Securities by the holders
thereof, the Issuer, the Guarantor and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time
to
time of the Securities as follows:
ARTICLE
1.
DEFINITIONS
Section
1.01. Certain
Terms Defined.
The
following terms (except as otherwise expressly provided herein or in any
indenture supplemental hereto, or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939
or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to
the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force
at
the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles, and the term “generally accepted
accounting principles” means such accounting principles as are generally
accepted at the time of any computation. The words “herein”, “hereof” and
“hereunder” and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision. The terms
defined in this Article have the meanings assigned to them in this Article
and
include the plural as well as the singular.
“Authorized
Agent” shall have the meaning set forth in Section 10.12.
“Bankruptcy
Law” means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar U.S. Federal, state or
any foreign law for the relief of debtors.
“Bearer
Security” means any Security other than a Registered Security.
“Board”
means the board of directors or the board of managers of the Issuer, or any
other body or Person authorized by the organizational documents or by the
members of the Issuer to act for it.
“Board
Resolution” means one or more resolutions, certified by the secretary of the
Board to have been duly adopted or consented to by the Board and to be in full
force and effect, and delivered to the Trustee.
“Business
Day” means, with respect to any Security, a day that in the city (or in any of
the cities, if more than one) in which amounts are payable, as specified in
the
form of such Security, is not a day on which banking institutions are authorized
by law or regulation to close.
“Capital
Stock” means:
(1) in
the
case of a corporation or a company, corporate stock or shares;
(2) in
the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock or shares;
(3) in
the
case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and
(4) any
other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing
Person.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or if at any time after
the
execution and delivery of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the
body performing such duties on such date.
“Corporate
Trust Office” means the office[s] of the Trustee located in New York [or London,
as applicable] at which at any particular time its corporate trust business
shall be administered of this Indenture is located in New York [or London,
respectively]).
“Depositary”
means, with respect to the Securities of any series issuable or issued in the
form of one or more Registered Global Securities, the Person designated as
Depositary by the Issuer pursuant to Section 2.03 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter “Depositary” shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
“Depositary” as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Registered Global Securities of that
series.
“Dollar”
means the coin or currency of the United States of America as at the time of
payment that is legal tender for the payment of public and private
debts.
-2-
“Event
of
Default” means any event or condition specified as such in Section
4.01.
“Guarantee”
means the unconditional guarantee of the payment of the principal of, any
premium or interest on, and any additional amounts with respect to the
Securities by the Guarantor, as more fully set forth in Article 12.
“Guarantor”
means the Person named as the “Guarantor” 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 “Guarantor” shall mean
such successor Person.
“Guarantor’s
Board of Directors” means the Board of Directors of the Guarantor or any
committee of such Board duly authorized to act hereunder.
“Guarantor’s
Officers’ Certificate” means a certificate (i) signed by any two officers of any
Guarantor duly authorized to execute any such certificate and (ii) delivered
to
the Trustee. Each such certificate shall comply with the requirements of Section
314 of the Trust Indenture Act of 1939.
“Holder”,
“Holder of Securities”, “Securityholder” or other similar terms mean the
registered holder of any Security.
“Indenture”
means this instrument as originally executed and delivered or, if amended or
supplemented as herein provided, as so amended or supplemented or both, and
shall include the forms and terms of particular series of Securities established
as contemplated hereunder.
“Interest”
means, when used with respect to non-interest bearing Securities, interest
payable after maturity.
“Issuer”
means (except as otherwise provided in Article 5) Amarin Finance Ltd., a Bermuda
exempted company limited by shares, and, subject to Article 8, its successors
and assigns.
“Judgment
Currency” shall have the meaning set forth in Section 10.13.
“New
York
Banking Day” shall have the meaning set forth in Section 10.13.
“Non-U.S.
Currency” means a currency issued by the government of a country other than the
United States (or any currency unit comprised of any such
currencies).
“Officers’
Certificate” means a certificate (i) signed by any two officers of the Issuer
authorized by the Board to execute any such certificate and (ii) delivered
to
the Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act of 1939.
“Opinion
of Counsel” means an opinion in writing signed by legal counsel to the Issuer or
the Guarantor, who may be an employee of or counsel to the Issuer or the
Guarantor and who shall be reasonably satisfactory to the Trustee. Each such
opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and
include the statements provided for in Section 10.05, if and to the extent
required hereby.
“Original
Issue Date” of any Security (or portion thereof) means the earlier of (a) the
date of such Security or (b) the date of any Security (or portion thereof)
for
which such Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.
-3-
“Original
Issue Discount Security” means any Security that provides for an amount less
than the principal amount thereof to be due and payable upon a declaration
of
acceleration of the maturity thereof pursuant to Section 4.01.
“Outstanding”,
when used with reference to Securities, shall, subject to the provisions of
Section 6.04, mean, as of any particular time, all Securities authenticated
and
delivered by the Trustee under this Indenture, except:
(a) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(b) Securities,
or portions thereof, for the payment or redemption of which moneys in the
necessary amount shall have been deposited in trust with the Trustee or with
any
paying agent (other than the Issuer or the Guarantor) or shall have been set
aside, segregated and held in trust by the Issuer or the Guarantor for the
holders of such Securities (if the Issuer shall act as its own, or authorize
the
Guarantor to act as, paying agent), provided that if such Securities, or
portions thereof, are to be redeemed prior to the maturity thereof, notice
of
such redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such notice;
and
(c) Securities
in substitution for which other Securities shall have been authenticated and
delivered, or which shall have been paid, pursuant to the terms of Section
2.09
(except with respect to any such Security as to which proof satisfactory to
the
Trustee is presented that such Security is held by a person in whose hands
such
Security is a legal, valid and binding obligation of the Issuer).
In
determining whether the holders of the requisite principal amount of Outstanding
Securities of any or all series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding for
such
purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to Section 4.01.
“Person”
means any individual, corporation, partnership, joint venture, association,
joint stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
“Principal”
whenever used with reference to the Securities or any Security or any portion
thereof, shall be deemed to include “and premium, if any”.
“Registered
Global Security”, means a Security evidencing all or a part of a series of
Registered Securities, issued to the Depositary for such series in accordance
with Section 2.03, and bearing the legend prescribed by the applicable
supplemental indenture.
“Registered
Security” means any Security registered on the Security register of the
Issuer.
“Required
Currency” shall have the meaning set forth in Section 10.13.
“Responsible
Officer” when used with respect to the Trustee means any officer of the Trustee,
including any vice president, assistant vice president, secretary, assistant
secretary, any assistant
-4-
treasurer,
any trust officer, or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such officer’s knowledge of
and familiarity with that particular subject and who shall have direct
responsibility for the administration of this Indenture.
“Security”
or “Securities” has the meaning stated in the first recital of this Indenture,
or, as the case may be, Securities that have been authenticated and delivered
under this Indenture.
“Senior
Debt” means, unless otherwise specified in an applicable supplemental indenture,
the principal of (and premium, if any) and interest, if any, on all obligations
and indebtedness (other than the Securities) of, or guaranteed or assumed by,
the Issuer or the Guarantor that are for borrowed money or are evidenced by
bonds, debentures, notes or other similar instruments, whether outstanding
on
the date of this Indenture or thereafter created, incurred, assumed or
guaranteed, and all amendments, renewals, extensions, modifications and
refundings of such indebtedness and obligations, unless in any such case the
instrument by which such indebtedness or obligations are created, incurred,
assumed or guaranteed by the Issuer or the Guarantor, or are evidenced, provides
that they are subordinate, or not superior, in right of payment to the
Securities.
“Trustee”
means the Person identified as “Trustee” in the first paragraph hereof and,
subject to the provisions of Article 5, shall also include any successor
trustee.
“Trust
Indenture Act of 1939” (except as otherwise provided in Sections 7.01 and 7.02)
means the Trust Indenture Act of 1939 as in force at the date as of which this
Indenture was originally executed.
“U.S.
Government Obligations” shall have the meaning set forth in Section
9.01.
“vice
president” when used with respect to the Issuer or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before
or after the title of “vice president”.
“Yield
to
Maturity” means the yield to maturity on a series of securities, calculated at
the time of issuance of such series, or, if applicable, at the most recent
redetermination of interest on such series, and calculated in accordance with
accepted financial practice.
ARTICLE
2.
SECURITIES
Section
2.01. Forms
Generally.
The
Securities of each series shall be substantially in such form (not inconsistent
with this Indenture) as shall be established by or pursuant to a resolution
of
the Board 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 imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Indenture, as may be required to comply with any law or with any rules
or regulations pursuant thereto, or with any rules of any securities exchange
or
to conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of the Securities.
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The
definitive Securities shall be printed or lithographed on security printed
paper
or may be produced in any other manner, all as determined by the officers
executing such Securities, as evidenced by their execution of such
Securities.
Section
2.02. Form
of
Trustee’s Certification of Authentication.
The
Trustee’s certificate of authentication on all Securities shall be in
substantially the following form:
This
is
one of the Securities of the series designated herein and referred to in the
within-mentioned Indenture.
[ ]
_______________________
as
Trustee
By:
___________________
Authorized
Signatory
Section
2.03. Amount
Unlimited; Issuable in Series.
The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The
Securities may be issued in one or more series and unless provided for otherwise
in an indenture supplemental hereto, each such series shall be subordinated
and
subject in right to all Senior Debt in accordance with Article 13. There shall
be established in or pursuant to a resolution of the Board and set forth in
an
Officers’ Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(a) the
designation of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
(b) any
limit
on the aggregate principal amount of the Securities of the series that may
be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 2.08,
2.09, 2.11 or 11.03);
(c) the
percentage or percentages of the principal amount at which the debt securities
will be issued;
(d) if
other
than Dollars, the coin or currency in which the Securities of that series are
denominated (including, but not limited to, any Non-U.S. Currency);
(e) the
date
or dates on which the principal of the Securities of the series is
payable;
(f) the
rate
or rates at which the Securities of the series shall bear interest, if any,
or
the method by which such rate shall be determined, the date or dates from which
such interest shall accrue, the interest payment dates on which such interest
shall be payable and the record dates for the determination of Holders to whom
interest is payable and/or the method by which such rate or rates or date or
dates shall be determined;
-6-
(g) the
place
or places where the principal of and any interest on Securities of the series
shall be payable (if other than as provided in Section 3.02);
(h) the
price
or prices at which, the period or periods within which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or
in
part, at the option of the Issuer, pursuant to any sinking fund or
otherwise;
(i) the
obligation, if any, of the Issuer to redeem, purchase or repay Securities of
the
series pursuant to any mandatory redemption sinking fund or analogous provisions
or at the option of a Holder thereof and the price or prices at which and the
period or periods within which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in whole or
in
part, pursuant to such obligation;
(j) if
other
than denominations of $1,000 and any multiple thereof, the denominations in
which Securities of the series shall be issuable;
(k) 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 4.01 or provable in bankruptcy
pursuant to Section 4.02;
(l) if
other
than the coin or currency in which the Securities of that series are
denominated, the coin or currency in which payment of the principal of or
interest on the Securities of such series shall be payable;
(m) if
the
principal of or interest on the Securities of such series are to be payable,
at
the election of the Issuer or a Holder thereof, in a coin or currency other
than
that in which the Securities are denominated, the period or periods within
which, and the terms and conditions upon which, such election may be
made;
(n) if
the
amount of payments of principal of and interest on the Securities of the series
may be determined with reference to an index based on a coin or currency other
than that in which the Securities of the series are denominated, or with
reference to any currencies, securities or baskets of securities, commodities
or
indices, the manner in which such amounts shall be determined;
(o) if
the
Holders of the Securities of the series may convert or exchange the Securities
of the series into or for securities of the Issuer or of other entities or
other
property (or the cash value thereof), the specific terms of and period during
which such conversion or exchange may be made;
(p) whether
the Securities of the series will be issuable as Registered Securities (and
if
so, whether such Securities will be issuable in whole or in part in the form
of
Registered Global Securities) or Bearer Securities (with or without coupons),
or
any combination of the foregoing, any restrictions applicable to the offer,
sale, transfer, exchange or delivery of Bearer Securities or Registered
Securities or the payment of interest thereon and, if other than as provided
herein, the terms upon which Bearer Securities of any series may be exchanged
for Registered Securities of such series and vice versa;
(q) the
identity of the Depositary;
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(r) whether
and under what circumstances the Issuer will pay additional amounts on the
Securities of the series held by a Person who is not a U.S. Person in respect
of
any tax, assessment or governmental charge withheld or deducted and, if so,
whether the Issuer will have the option to redeem such Securities rather than
pay such additional amounts;
(s) if
the
Securities of such series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security of such series) only
upon receipt of certain certificates or other documents or satisfaction of
other
conditions, the form and terms of such certificates, documents or
conditions;
(t) any
trustees, depositaries, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the Securities of such
series;
(u) any
applicable United States federal income tax and English income tax consequences,
and, if applicable, Bermuda income tax consequences, including, but not limited
to: whether and under what circumstances the Issuer will pay additional amounts
on Securities for any tax, assessment or governmental charge withheld or
deducted and, if so, whether it will have the option to redeem those Securities
rather than pay the additional amounts; tax considerations applicable to any
discounted Securities or to Securities issued at par that are treated as having
been issued at a discount for United States federal income tax purposes; and
tax
considerations applicable to any Securities denominated and payable in foreign
currencies;
(v) whether
the Securities of such series will be secured;
(w) any
applicable selling restrictions;
(x) whether
the Securities of such series will be entitled to the benefits of
guarantees;
(y) any
other
events of default, modifications or elimination of any acceleration rights,
or
covenants with respect to the Securities of such series and any terms required
by or advisable under applicable laws or regulations; and
(z) any
other
terms of the Securities of such series.
All
Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution or in any such indenture
supplemental hereto.
Section
2.04. Authentication
and Delivery of Securities.
At any
time and from time to time after the execution and delivery of this Indenture,
the Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the written order of the Issuer, signed
by
any two officers of the Issuer authorized by the Board to execute any such
order, without any further action by the Issuer. In authenticating such
Securities and accepting the additional responsibilities under this Indenture
in
relation to such Securities the Trustee shall be entitled to receive, and
(subject to Section 5.01) shall be fully protected in relying upon:
-8-
(a) a
certified copy of any resolution or resolutions of the Board authorizing the
action taken pursuant to the resolution or resolutions delivered under clause
2.04(b) below;
(b) a
copy of
any resolution or resolutions of the Board relating to such series, in each
case
certified by the Secretary or an Assistant Secretary of the Issuer;
(c) an
executed supplemental indenture, if any;
(d) an
Officers’ Certificate setting forth the form and terms of the Securities as
required pursuant to Sections 2.01 and 2.03, respectively and prepared in
accordance with Section 10.05;
(e) an
Opinion
of Counsel, prepared in accordance with Section 10.05, to the effect
that
(i) the
form
or forms and terms of such Securities have been established by or pursuant
to a
resolution of the Board or by a supplemental indenture as permitted by Sections
2.01 and 2.03 in conformity with the provisions of this Indenture;
(ii) such
Securities, when authenticated and delivered by the Trustee and issued by the
Issuer in the manner and subject to any conditions specified in such Opinion
of
Counsel, will constitute valid and binding obligations of the Issuer;
and
(iii) all
laws
and requirements in respect of the execution and delivery by the Issuer of
the
Securities have been complied with; and
(iv) covering
such other matters as the Trustee may reasonably request.
The
Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders.
Section
2.05. Execution
of Securities.
The
Securities shall be signed on behalf of the Issuer by any two officers of the
Issuer authorized by the Board to execute such Securities, which Securities
may,
but need not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In
case
any officer of the Issuer who shall have signed any of the Securities shall
cease to be such officer before the Security so signed shall be authenticated
and delivered by the Trustee or disposed of by the Issuer, such Security
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Security had not ceased to be such officer of the Issuer;
and any Security may be signed on behalf of the Issuer by such persons as,
at
the actual date of the execution of such Security, shall be the proper officers
of the Issuer, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.
-9-
Section
2.06. Certificate
of Authorization.
Only
such Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee by
the
manual signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Security executed by the Issuer shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
Section
2.07. Denomination
and Date of Securities; Payments of Interest.
The
Securities shall be issuable as registered securities without coupons and in
denominations as shall be specified as contemplated by Section 2.03. In the
absence of any such specification with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000
and
any multiple thereof. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers
of
the Issuer executing the same may determine with the approval of the Trustee
as
evidenced by the execution and authentication thereof.
Each
Security shall be dated the date of its authentication, shall bear interest,
if
any, from the date and shall be payable on the dates, in each case, which shall
be specified as contemplated by Section 2.03.
The
person
in whose name any Security of any series is registered at the close of business
on any record date applicable to a particular series with respect to any
interest payment date for such series shall be entitled to receive the interest,
if any, payable on such interest payment date notwithstanding any transfer
or
exchange of such Security subsequent to the record date and prior to such
interest payment date, except if and to the extent the Issuer and the Guarantor
shall default in the payment of the interest due on such interest payment date
for such series, in which case such defaulted interest shall be paid to the
persons in whose names Outstanding Securities for such series are registered
at
the close of business on a subsequent record date (which shall be not less
than
five Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer or the
Guarantor to the holders of Securities not less than 15 days preceding such
subsequent record date. The term “record date” as used with respect to any
interest payment date (except a date for payment of defaulted interest) shall
mean the date specified as such in the terms of the Securities of any particular
series, or, if no such date is so specified, if such interest payment date
is
the first day of a calendar month, the fifteenth day of the next preceding
calendar month or, if such interest payment date is the fifteenth day of a
calendar month, the first day of such calendar month, whether or not such record
date is a Business Day.
Section
2.08. Registration,
Transfer and Exchange.
The
Issuer will keep or cause to be kept at each office or agency to be maintained
for the purpose as provided in Section 3.02 a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will register,
and will register the transfer of, Securities as in this Article provided.
Such
register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open for inspection by
the
Trustee.
Upon
due
presentation for registration of transfer of any Security of any series at
any
such office or agency to be maintained for the purpose as provided in Section
3.02, the Issuer shall execute and the Trustee shall authenticate and deliver
in
the name of the transferee or transferees a new Security or Securities of the
same series in authorized denominations for a like aggregate principal
amount.
Any
Security or Securities of any series may be exchanged for a Security or
Securities of the same series in other authorized denominations, in an equal
aggregate principal amount. Securities of any series to be exchanged shall
be
surrendered at any office or agency to be maintained by the Issuer for the
purpose as provided in Section 3.02, and the Issuer shall execute and the
Trustee shall authenticate
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and
deliver in exchange therefor the Security or Securities of the same series
which
the Securityholder making the exchange shall be entitled to receive, bearing
numbers not contemporaneously outstanding.
All
Securities presented for registration of transfer, exchange, redemption or
payment shall (if so required by the Issuer or the Trustee) be duly endorsed
by,
or be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the holder or
his
attorney duly authorized in writing.
The
Issuer
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any exchange or registration
of
transfer of Securities. No service charge shall be made for any such
transaction.
The
Issuer
shall not be required to exchange or register a transfer of (a) any Securities
of any series for a period of 15 days next preceding the first mailing of notice
of redemption of Securities of such series to be redeemed, or (b) any Securities
selected, called or being called for redemption except, in the case of any
Security where notice has been given that such Security is to be redeemed in
part, the portion thereof not so to be redeemed.
All
Securities issued upon any transfer or exchange of Securities shall be valid
obligations of the Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such transfer
or exchange.
Section
2.09. Mutilated,
Defaced, Destroyed, Lost and Stolen Securities.
In case
any temporary or definitive Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of any officer of the Issuer, the Trustee shall authenticate
and deliver, a new Security of the same series, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
or
defaced Security, or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Issuer, the Guarantor, and the Trustee and any agent of the
Issuer, the Guarantor or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless
and,
in every case of destruction, loss or theft, evidence to their satisfaction
of
the destruction, loss or theft of such Security and of the ownership thereof
in
the case of mutilation or defacement shall surrender the Security to the Trustee
or such agent.
Upon
the
issuance of any substitute Security, the Issuer may require the payment of
a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
relation thereto and any other expenses (including the fees and expenses of
the
Trustee or its agent) connected therewith. In case any Security which has
matured or is about to mature or has been called for redemption in full shall
become mutilated or defaced or be destroyed, lost or stolen, the Issuer may
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated or defaced
Security), if the applicant for such payment shall furnish to the Issuer, the
Guarantor and the Trustee and any agent of the Issuer, the Guarantor or the
Trustee such security or indemnity as any of them may require to save each
of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer, the Guarantor and the Trustee and any agent
of
the Issuer, the Guarantor or the Trustee evidence to their satisfaction of
the
destruction, loss or theft of such Security and of the ownership
thereof.
Every
substitute Security of any series issued pursuant to the provisions of this
section by virtue of the fact that any such Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Issuer
and
the Guarantor, whether or not the destroyed, lost or stolen Security shall
be at
any time enforceable by anyone and shall be entitled to all the benefits of
(but
shall be subject to all
-11-
the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Securities of such series duly authenticated and
delivered hereunder. All Securities shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced
or
destroyed, lost or stolen Securities and shall preclude any and all other rights
or remedies notwithstanding any law or statute existing or hereafter enacted
to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section
2.10. Cancellation
of Securities.
All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee,
shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of cancelled Securities held by it in
accordance with its procedures for the disposition of cancelled Securities
and
deliver a certificate of disposition to the Issuer. If the Issuer shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until
the same are delivered to the Trustee for cancellation.
Section
2.11. Temporary
Securities.
Pending
the preparation of definitive Securities for any series, the Issuer may execute
and the Trustee shall authenticate and deliver temporary Securities for such
series (printed, lithographed, typewritten or otherwise reproduced, in each
case
in form satisfactory to the Trustee). Temporary Securities of any series shall
be issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of
such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may contain such reference
to
any provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Issuer and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect,
as
the definitive Securities. Without unreasonable delay the Issuer shall execute
and shall furnish definitive Securities of such series and thereupon temporary
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.02, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series a like aggregate principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled
to
the same benefits under this Indenture as definitive Securities of such series
unless otherwise established pursuant to Section 2.03.
Section
2.12. CUSIP
Numbers,
ISINs
and Common Codes.
The
Issuer in issuing the Securities may use one or more “CUSIP” numbers “ISINs”
and/or Common Codes, and, if so, the Trustee shall use such CUSIP numbers,
ISINs
and Common Codes 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 Issuer will
promptly notify the Trustee in writing of any change in the CUSIP numbers,
ISINs
and/or Common Codes.
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ARTICLE
3.
COVENANTS
OF THE ISSUER, THE GUARANTOR AND THE TRUSTEE
Section
3.01. Payment
of Principal and Interest.
The
Issuer covenants and agrees for the benefit of each series of Securities that
it
will duly and punctually pay or cause to be paid the principal of, and interest
on, each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at
the
respective times and in the manner provided in such Securities. Subject to
any
other provisions that may be established pursuant to Section 2.03, the interest
on Securities (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only to or upon the written order
of
the Holders thereof and, at the option of the Issuer, may be paid by wire
transfer or by mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the registry
books of the Issuer.
Section
3.02. Offices
for Payments, etc.
So long
as any of the Securities remain outstanding, the Issuer will maintain in the
Borough of Manhattan, The City of New York [or London, England], the following
for each series: an office or agency (a) where the Securities may be presented
for payment, (b) where the Securities may be presented for registration of
transfer and for exchange as in this Indenture provided and (c) where notices
and demands to or upon the Issuer in respect of the Securities or of this
Indenture may be served. The Issuer will give to the Trustee written notice
of
the location of any such office or agency and of any change of location thereof.
[Unless otherwise specified in accordance with Section 2.03, the Issuer hereby
initially designates the Corporate Trust Office of the Trustee, as the office
to
be maintained by it for each such purpose.] In case the Issuer shall fail to
so
designate or maintain any such office or agency or shall fail to give such
notice of the location or of any change in the location thereof, presentations
and demands may be made and notices may be served at the Corporate Trust
Office.
The
Issuer
may from time to time designate one or more additional offices or agencies
where
the Securities of a series may be presented for payment, where the Securities
of
that series may be presented for exchange as provided in this Indenture and
pursuant to Section 2.03 and where the Securities of that series may be
presented for registration of transfer as provided in this Indenture, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission
thereof.
Section
3.03. Appointment
to Fill a Vacancy in Office of Trustee.
The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 5.09, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
Section
3.04. Paying
Agents.
Whenever
the Issuer shall appoint a paying agent other than the Trustee with respect
to
the Securities of any series, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section,
(a) that
it
will hold all sums received by it as such agent for the payment of the principal
of or interest on the Securities of such series (whether such sums have been
paid to it by the Issuer, any Guarantor or by any other obligor on the
Securities of such series) in trust for the benefit of the holders of the
Securities of such series or of the Trustee,
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(b) that
it
will give the Trustee notice of any failure by the Issuer (or by any Guarantor
or any other obligor on the Securities of such series) to make any payment
of
the principal of or interest on the Securities of such series when the same
shall be due and payable, and
(c) that
it
will pay any such sums so held in trust by it to the Trustee upon the Trustee’s
written request at any time during the continuance of the failure referred
to in
clause 3.04(b) above.
The
Issuer
will, on or prior to each due date of the principal of or interest on the
Securities of such series, deposit with the paying agent a sum sufficient to
pay
such principal or interest so becoming due, and (unless such paying agent is
the
Trustee) the Issuer will promptly notify the Trustee of any failure to take
such
action.
If
the
Issuer shall act as its own paying agent with respect to the Securities of
any
series, it will, on or before each due date of the principal of or interest
on
the Securities of such series, set aside, segregate and hold in trust for the
benefit of the holders of the Securities of such series a sum sufficient to
pay
such principal or interest so becoming due. The Issuer will promptly notify
the
Trustee of any failure to take such action.
Anything
in this section to the contrary notwithstanding, the Issuer may at any time,
for
the purpose of obtaining a satisfaction and discharge with respect to one or
more or all series of Securities hereunder, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust for any such series
by
the Issuer or any paying agent hereunder, as required by this Section, such
sums
to be held by the Trustee upon the trusts herein contained.
Anything
in this section to the contrary notwithstanding, the agreement to hold sums
in
trust as provided in this section is subject to the provisions of Section 9.03
and 9.04.
Section
3.05. Certificates
of the Issuer and the Guarantor.
The
Issuer and the Guarantor will each furnish to the Trustee within 120 days after
the end of each fiscal year of the Issuer or Guarantor, as the case may be
(beginning with [__]), an Officers’ Certificate of the Issuer or the Guarantor,
as the case may be, as to the signers’ knowledge of the Issuer’s or the
Guarantor’s compliance with all conditions and covenants under this Indenture
(such compliance to be determined without regard to any period of grace or
requirement of notice provided under this Indenture). In the event an Officer
of
the Issuer or the Guarantor comes to have actual knowledge of an Event of
Default or an event which, with notice or the lapse of time or both, would
constitute an Event of Default, regardless of the date, the Issuer shall deliver
an Officers’ Certificate to the Trustee specifying such Default and the nature
and status thereof.
Section
3.06. Securityholders
Lists.
If and
so long as the Trustee shall not be the Security registrar for the Securities
of
any series, the Issuer will furnish or cause to be furnished to the Trustee
a
list in such form as the Trustee may reasonably require of the names and
addresses of the holders of the Securities of such series pursuant to Section
312 of the Trust Indenture Act of 1939 (a) semi-annually not more than 15 days
after each record date for the payment of interest on such Securities, as
hereinabove specified, as of such record date and on dates to be determined
pursuant to Section 2.03 for non-interest bearing securities in each year,
and
(b) at such other times as the Trustee may request in writing, within thirty
days after receipt by the Issuer of any such request as of a date not more
than
15 days prior to the time such information is furnished.
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Section
3.07. Reports
by the Issuer.
Each of
the Issuer and the Guarantor covenants to file with the Trustee, within 15
days
after the Issuer or the Guarantor, as the case may be, is required to file
the
same with the Commission, copies of the annual reports and of the information,
documents, and other reports that the Issuer or the Guarantor may be required
to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934. 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 Issuer’s or the Guarantor’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).
Section
3.08. Reports
by the Trustee.
Any
Trustee’s report required under Section 313(a) of the Trust Indenture Act of
1939 shall be transmitted on or before July 15 in each year following the date
hereof, so long as any Securities are outstanding hereunder, and shall be dated
as of a date convenient to the Trustee no more than 60 nor less than 45 days
prior thereto.
Section
3.09. Calculation
of Original Issue Discount.
The
Issuer shall provide to the Trustee on a timely basis such information as the
Trustee requires to enable the Trustee to prepare and file any form required
to
be submitted by the Trustee on behalf of the Issuer with the Internal Revenue
Service and the Holders of Securities relating to original issue discount,
including, without limitation, Form 1099-OID or any successor form.
ARTICLE
4.
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section
4.01. Event
of Default; Acceleration of Maturity; Waiver of Default.
Unless
otherwise established in accordance with Section 2.03 or by any applicable
supplemental indenture, “Event of Default” with respect to Securities of any
series wherever used herein, means each one of the following events which shall
have occurred and be continuing (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation
of
law or pursuant to any judgment, decree or order of any court or any order,
rule
or regulation of any administrative or governmental body):
(a) default
in
the payment of premium or principal in respect of the Securities;
or
(b) default
for more than 30 days in the payment of interest in respect of the Securities;
or
(c) the
failure by the Issuer and/or the Guarantor to perform or observe any other
obligations under the Securities which failure continues for the period of
60
days after they receive notice of default stating they are in breach;
or
(d) the
entry
by a court having jurisdiction in the premises of:
(i) a
decree
or order for relief in respect of the Issuer or the Guarantor in an involuntary
case or proceeding under any applicable Bankruptcy Law; or
(ii) a
decree
or order adjudging the Issuer or the Guarantor a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Issuer or the Guarantor under
any appli-
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cable
Bankruptcy Law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Issuer or the Guarantor
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
(e) the
commencement by the Issuer or the Guarantor of a voluntary case or proceeding
under any applicable Bankruptcy Law other similar law or of any other case
or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Guarantor to the entry of a decree or order for relief in respect of the Issuer
or the Guarantor in an involuntary case or proceeding under any applicable
Bankruptcy Law or other similar law or to the commencement of any bankruptcy
or
insolvency case or proceeding against the Issuer or the Guarantor, or the filing
by the Issuer or the Guarantor of a petition or answer or consent seeking
reorganization or relief under any applicable Bankruptcy Law, or the consent
by
the Issuer or the Guarantor to the filing of such petition or to the appointment
of or the taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Issuer or the Guarantor
or of any substantial part of its property, or the making by the Issuer or
the
Guarantor of an assignment for the benefit or creditors, or the admission by
the
Issuer or the Guarantor in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Issuer or the
Guarantor expressly in furtherance of any such action; or
(f) any
other
Event of Default provided in the supplemental indenture or resolution of the
Board under which such series of Securities is issued or in the form of Security
for such series.
Unless
otherwise set forth in any applicable supplemental indenture, if an Event of
Default described in clauses 4.01(a), 4.01(b), 4.01(c) or 4.01(f) above (if
the
Event of Default under clauses 4.01(c) or 4.01(f) is with respect to less than
all series of Securities then Outstanding) occurs and is continuing, then,
and
in each and every such case, except for any series the principal of which shall
have already become due and payable, either the Trustee or the holders of not
less than 25% in aggregate principal amount of the Securities of all series
affected thereby then Outstanding hereunder (treated as one class) by notice
in
writing to the Issuer and the Guarantor (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
any
such affected series are Original Issue Discount Securities, such portion of
the
principal amount as may be specified in the terms of such series) of all
Securities of such affected series and the interest accrued thereon, if any,
to
be due and payable immediately, and upon any such declaration the same shall
become immediately due and payable. Unless otherwise set forth in any applicable
supplemental indenture, if an Event of Default described in clauses 4.01(c)
or
4.01(f) (if the Event of Default under clauses 4.01(c) or 4.01(f) is with
respect to all series of Securities at the time Outstanding) occurs and is
continuing, then and in each and every such case, unless the principal of all
the Securities shall have already become due and payable, either the Trustee
or
the holders of not less than 25% in aggregate principal amount of all the then
Outstanding Securities hereunder (treated as one class) for which any applicable
supplemental indenture does not prevent acceleration under the relevant
circumstances, by notice in writing to the Issuer and the Guarantor (and to
the
Trustee if given by Securityholders), may declare the entire principal (or,
if
any Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then
Outstanding and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due
and payable. Unless otherwise set forth in any applicable supplemental
indenture, if an Event of Default described in clauses 4.01(d) or 4.01(e),
then
the principal and accrued and unpaid interest, and premium of any, with respect
to any Secu-
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rities
then Outstanding shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holder.
The
foregoing provisions, however, are subject to the condition that if, at any
time
after the principal (or, if the Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of the Securities of any series (or of all the Securities, as the
case
may be) shall have been so declared due and payable, and before any judgment
or
decree for the payment of the moneys due shall have been obtained or entered
as
hereinafter provided, the Issuer or the Guarantor shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of interest
upon all the Securities of such series (or of all the Securities, as the case
may be) and the principal of any and all Securities of such series (or of all
the Securities, as the case may be) which shall have become due otherwise than
by acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest, at the same rate as the rate of interest or Yield
to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series (or at the respective rates of interest or Yields
to
Maturity of all the Securities, as the case may be) to the date of such payment
or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of negligence or bad faith, and if any and all Events of Default
under the Indenture, other than the non-payment of the principal of Securities
which shall have become due by acceleration, shall have been cured, waived
or
otherwise remedied as provided herein--then and in every such case the holders
of a majority in aggregate principal amount of all the Securities of each such
series (or of all the Securities, as the case may be), then Outstanding (in
each
case treated as one class), by written notice to the Issuer, the Guarantor
and
the Trustee, may waive all defaults with respect to each such series (or with
respect to all the Securities, as the case may be) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any
right
consequent thereon.
For
all
purposes under this Indenture, if a portion of the principal of any Original
Issue Discount Securities shall have been accelerated and declared due and
payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed,
for
all purposes hereunder, to be such portion of the principal thereof as shall
be
due and payable as a result of such acceleration, and payment of such portion
of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
Section
4.02. Collection
of Indebtedness by Trustee; Trustee May Prove Debt.
Each of
the Issuer and the Guarantor covenants that (a) in case default shall be made
in
the payment of any installment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be
made in the payment of all or any part of the principal of any of the Securities
of any series when the same shall have become due and payable, whether upon
maturity of the Securities of such series or upon any redemption or by
declaration or otherwise then upon demand of the Trustee, the Issuer or the
Guarantor, as the case may be, will pay to the Trustee for the benefit of the
Holders of the Securities of such series the whole amount that then shall have
become due and payable on all Securities of such series for principal or
interest, as the case may be (with interest to the date of such payment upon
the
overdue principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series); and
in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including reasonable compensation to the
Trus-
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tee
and
each predecessor Trustee, their respective agents, attorneys and counsel, and
any expenses and liabilities incurred, and all advances made, by the Trustee
and
each predecessor Trustee except as a result of its negligence or bad
faith.
Until
such
demand is made by the Trustee, the Issuer may pay the principal of and interest
on the Securities of any series to the registered holders, whether or not the
principal of and interest on the Securities of such series be
overdue.
In
case
the Issuer or the Guarantor shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or
in
equity for the collection of the sums so due and unpaid, and may prosecute
any
such action or proceedings to judgment or final decree, and may enforce any
such
judgment or final decree against the Issuer or the Guarantor or other obligor
of
such Securities and collect in the manner provided by law out of the property
of
the Issuer or the Guarantor or other obligor of such Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In
case
there shall be pending proceedings relative to the Issuer, the Guarantor or
any
other obligor of the Securities under Bankruptcy Law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator
or
similar official shall have been appointed for or taken possession of the Issuer
or the Guarantor or its property or such other obligor, or in case of any other
comparable judicial proceedings relative to the Issuer, the Guarantor or other
obligor of the Securities of any series, or to the creditors or property of
the
Issuer, the Guarantor or such other obligor, the Trustee, irrespective of
whether the principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall
be
entitled and empowered, by intervention in such proceedings or
otherwise:
(a) to
file
and prove a claim or claims for the whole amount of principal and interest
(or,
if the Securities of any series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series)
owing and unpaid in respect of the Securities of any series, and to file such
other papers or documents as may be necessary or advisable in order to have
the
claims of the Trustee (including any claim for reasonable compensation to the
Trustee and each predecessor Trustee, and their respective agents, attorneys
and
counsel, and for reimbursement of all expenses and liabilities incurred, and
all
advances made, by the Trustee and each predecessor Trustee, except as a result
of negligence or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer, Guarantor or other obligor of the Securities
of any series, or to the creditors or property of the Issuer, Guarantor or
such
other obligor,
(b) unless
prohibited by applicable law and regulations, to vote on behalf of the holders
of the Securities of any series in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in comparable
proceedings, and
(c) to
collect
and receive any moneys or other property payable or deliverable on any such
claims, and to distribute all amounts received with respect to the claims of
the
Securityholders and of the Trustee on their behalf; and any trustee, receiver,
or liquidator, custodian or other similar official is hereby authorized by
each
of the Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient
to
cover reasonable com-
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pensation
to the Trustee, each predecessor Trustee and their respective agents, attorneys
and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or vote for or accept or adopt on behalf of any Securityholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Securities of any series or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar person.
All
rights
of action and of asserting claims under this Indenture, or under any of the
Securities, may be enforced by the Trustee without the possession of any of
the
Securities or the production thereof on any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the Trustee shall
be
brought in its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and compensation
of the Trustee, each predecessor Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the holders of the Securities
in
respect of which such action was taken.
In
any
proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall
be
a party) the Trustee shall be held to represent all the holders of the
Securities in respect to which such action was taken, and it shall not be
necessary to make any holders of such Securities parties to any such
proceedings.
Section
4.03. Application
of Proceeds.
Subject
to the subordination provisions in this Indenture, any moneys collected by
the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities in respect of which
monies have been collected and stamping (or otherwise noting) thereon the
payment, or issuing Securities of such series in reduced principal amounts
in
exchange for the presented Securities of like series if only partially paid,
or
upon surrender thereof if fully paid:
FIRST:
To
the payment of costs and expenses applicable to such series in respect of which
monies have been collected, including reasonable compensation to the Trustee
and
each predecessor Trustee and their respective agents and attorneys and of all
expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or bad
faith;
SECOND
:
In case the principal of the Securities of such series in respect of which
moneys have been collected shall not have become and be then due and payable,
to
the payment of interest on the Securities of such series in default in the
order
of the maturity of the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or Yield
to
Maturity (in the case of Original Issue Discount Securities) specified in such
Securities, such payments to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD:
In
case the principal of the Securities of such series in respect of which moneys
have been collected shall have become and shall be then due and payable, to
the
payment of the whole amount then owing and unpaid upon all the Securities of
such series for principal and interest, with interest upon the overdue
principal, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the same rate as the rate
of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities
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of
such
series; and in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to the payment
of such principal and interest or Yield to Maturity, without preference or
priority of principal over interest or Yield to Maturity, or of interest or
Yield to Maturity over principal, or of any installment of interest over any
other installment of interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such principal and accrued
and unpaid interest or Yield to Maturity; and
FOURTH:
To
the payment of the remainder, if any, to the Issuer or any other person lawfully
entitled thereto.
Section
4.04. Suits
for Enforcement.
In case
an Event of Default has occurred, has not been waived and is continuing, the
Trustee may in its discretion proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such rights, either
at
law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in
aid
of the exercise of any power granted in this Indenture or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by
law.
Section
4.05. Restoration
of Rights on Abandonment of Proceeding.
In case
the Trustee shall have proceeded to enforce any right under this Indenture
and
such proceedings shall have been discontinued or abandoned for any reason,
or
shall have been determined adversely to the Trustee, then and in every such
case
the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
Section
4.06. Limitations
on Suits by Securityholder.
No
Holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under
or
with respect to this Indenture, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore provided,
and
unless also the Holders of not less than 25% in aggregate principal amount
of
the Securities of each affected series then Outstanding (treated as a single
class) shall have made written request upon the Trustee to institute such action
or proceedings in its own name as trustee hereunder and shall have offered
to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby and the Trustee
for
60 days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 4.09; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security with every other taker
and
Holder and the Trustee, that no one or more Holders of Securities of any series
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other such Holder of Securities, or to obtain or seek to obtain priority over
or
preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable
and
common benefit of all Holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Section
4.07. Unconditional
Right of Securityholders to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of
any
Security, the right of any
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Holder
of
any Security to receive payment of the principal of and interest on such
Security on or after the respective due dates expressed in such Security, or
to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of
such
Holder.
Section
4.08. Powers
and Remedies Cumulative; Delay or Omission Not Waiver of Default.
Except
as provided in Section 4.06, no right or remedy herein conferred upon or
reserved to the Trustee or to the Securityholders is intended to be exclusive
of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No
delay
or omission of the Trustee or of any Securityholder to exercise any right or
power accruing upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power or shall be construed to be a waiver of
any
such Event of Default or an acquiescence therein; and, subject to Section 4.06,
every power and remedy given by this Indenture or by law to the Trustee or
to
the Securityholders may be exercised from time to time, and as often as shall
be
deemed expedient, by the Trustee or by the Securityholders.
Section
4.09. Control
by Securityholders.
The
Holders of a majority in aggregate principal amount of the Securities of each
series affected (with all such series voting as a single class) at the time
Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to the Securities
of
such series by this Indenture; provided that such direction shall not be
otherwise than in accordance with law and the provisions of this Indenture
and
provided further that (subject to the provisions of Section 5.01) the Trustee
shall have the right to decline to follow any such direction if the Trustee
shall determine that the action or proceeding so directed may not lawfully
be
taken or if the Trustee in good faith by its board of directors, the executive
committee, or a trust committee of directors or Responsible Officers of the
Trustee shall determine that the action or proceedings so directed would involve
the Trustee in personal liability or if the Trustee in good faith shall so
determine that the actions or forebearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of said
direction, it being understood that (subject to Section 5.01) the Trustee shall
have no duty to ascertain whether or not such actions or forebearances are
unduly prejudicial to such Holders.
Nothing
in
this Indenture shall impair the right of the Trustee in its discretion to take
any action deemed proper by the Trustee and which is not inconsistent with
such
direction or directions by Securityholders.
Section
4.10. Waiver
of Past Defaults.
Prior to
the acceleration of the maturity of any Securities as provided in Section 4.01,
the Holders of a majority in aggregate principal amount of the Securities of
all
series at the time Outstanding with respect to which an Event of Default shall
have occurred and be continuing (voting as a single class) may on behalf of
the
Holders of all such Securities waive any past default or Event of Default
described in Section 4.01 and its consequences, except a default in respect
of a
covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected. In the case of any such waiver,
the Issuer, the Guarantor, the Trustee and the Holders of all such Securities
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair
any
right consequent thereon.
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Upon
any
such waiver, such default shall cease to exist and be deemed to have been cured
and not to have occurred, and any Event of Default arising therefrom shall
be
deemed to have been cured, and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or
Event of Default or impair any right consequent thereon.
Section
4.11. Trustee
to Give Notice of Default, But May Withhold in Certain
Circumstances.
The
Trustee shall give to the Securityholders of any series, as the names and
addresses of such Holders appear on the registry books, notice by mail of all
defaults known to the Trustee which have occurred with respect to such series,
such notice to be transmitted within 90 days after the occurrence thereof,
unless such defaults shall have been cured before the giving of such notice
(the
term “default” or “defaults” for the purposes of this section being hereby
defined to mean any event or condition which is, or with notice or lapse of
time
or both would become, an Event of Default); provided that, except in the case
of
default in the payment of the principal of or interest on any of the Securities
of such series, or in the payment of any sinking or purchase fund installment
with respect to the Securities of such series, the Trustee shall be protected
in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Securityholders of such series.
Section
4.12. Right
of Court to Require Filing of Undertaking to Pay Costs.
All
parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit
of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case
of
any suit relating to or arising under clauses 4.01(c) or 4.01(f) (if the suit
relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities Outstanding affected thereby, or in
the
case of any suit relating to or arising under clauses 4.01(c) or 4.01(f) (if
the
suit relates to all the Securities then Outstanding), 4.01(d) or 4.01(e), 10%
in
aggregate principal amount of all Securities Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed
in
such Security.
ARTICLE
5.
CONCERNING
THE TRUSTEE
Section
5.01. Duties
and Responsibilities of the Trustee; During Default; Prior to
Default.
With
respect to the Holders of any series of Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default with respect to the
Securities of a particular series and after the curing or waiving of all Events
of Default which may have occurred with respect to such series, undertakes
to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Securities of a
series has occurred (which has not been cured or waived) the Trustee shall
exercise with respect to such series of Securities 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 or her own affairs.
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No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own willful misconduct, except that
(a) prior
to
the occurrence of an Event of Default with respect to the Securities of any
series and after the curing or waiving of all such Events of Default with
respect to such series which may have occurred:
(i) the
duties
and obligations of the Trustee with respect to the Securities of any series
shall be determined solely by the express provisions of this Indenture, and
the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
(ii) in
the
absence of bad faith on the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or opinions furnished
to
the Trustee and conforming to the requirements of this Indenture; but in the
case of any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein);
(b) the
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it shall
be
proved that the Trustee was negligent in ascertaining the pertinent facts;
and
(c) the
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in good faith in accordance with the direction of the holders
pursuant to Section 4.09 relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture.
None
of
the provisions contained in this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if there shall be reasonable ground for believing that the repayment
of
such funds or adequate indemnity against such liability is not reasonably
assured to it.
The
provisions of this Section 5.01 are in furtherance of and subject to Sections
315 and 316 of the Trust Indenture Act of 1939.
Section
5.02. Certain
Rights of the Trustee
.
In
furtherance of and subject to the Trust Indenture Act of 1939, and subject
to
Section 5.01:
(a) the
Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, Officers’ Certificate, Guarantor’s Officers’
Certificate or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, coupon, security or
other paper or document believed by it to be genuine and to have been signed
or
presented by the proper party or parties;
(b) any
request, direction, order or demand of the Issuer or the Guarantor mentioned
herein shall be sufficiently evidenced by an Officers’ Certificate or a
Guarantor’s Officers’ Cer-
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tificate,
as the case may be, (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board or of the Guarantor’s
Board of Directors may be evidenced to the Trustee by a copy thereof certified
by the secretary or an assistant secretary of the Issuer or the Guarantor,
as
the case may be;
(c) the
Trustee may consult with counsel of its selection and any advice or Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken, suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(d) the
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it by this Indenture at the request, order or direction of any of
the
Securityholders pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might
be
incurred therein or thereby;
(e) the
Trustee shall not be liable for any action taken or omitted by it in good faith
and believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Indenture;
(f) prior
to
the occurrence of an Event of Default hereunder and after the curing or waiving
of all Events of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or other paper
or
document unless requested in writing so to do by the Holders of not less than
a
majority in aggregate principal amount of the Securities of all series affected
then outstanding; provided that, if the payment within a reasonable time to
the
Trustee of the costs, expenses or liabilities likely to be incurred by it in
the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require indemnity satisfactory to it against such
expenses or liabilities as a condition to proceeding; the reasonable expenses
of
every such investigation shall be paid by the Issuer or, if paid by the Trustee
or any predecessor trustee, shall be repaid by the Issuer upon demand;
and
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys not regularly
in
its employ and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due care
by
it hereunder;
(h) whenever
in the administration of this Indenture the Trustee shall deem it desirable
that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely
upon
an Officers’ Certificate;
(i) the
Trustee shall not be deemed to have notice of any Event of Default or an event
which, with notice or lapse of time or both, would constitute an 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;
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(j) 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;
and
(k) the
Trustee may request that the Issuer deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time
to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.
Section
5.03. Trustee
Not Responsible for Recitals, Disposition of Securities or Application of
Proceeds Thereof.
The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Issuer
or the Guarantor, as the case may be, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to
the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Issuer of any of
the
Securities or of the proceeds thereof.
Section
5.04. Trustee
and Agents May Hold Securities; Collections, etc.
The
Trustee or any agent of the Issuer, the Guarantor or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not the Trustee or such agent
and
may otherwise deal with the Issuer or the Guarantor and receive, collect, hold
and retain collections from the Issuer or the Guarantor with the same rights
it
would have if it were not the Trustee or such agent.
Section
5.05. Moneys
Held by Trustee.
Subject
to the provisions of Section 9.04 hereof, all moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither
the
Trustee nor any agent of the Issuer or the Trustee shall be under any liability
for interest on any moneys received by it hereunder.
Section
5.06. Compensation
and Indemnification of Trustee and Its Prior Claim.
The
Issuer covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, compensation as the Issuer and the Trustee shall
from time to time agree in writing (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) and
the
Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except to the extent any such expense, disbursement or advance
may arise from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee and their agents for, and
to
hold it harmless against, any loss, liability or expense arising out of or
in
connection with the acceptance or administration of this Indenture or the trusts
hereunder and the performance of its duties hereunder, including the costs
and
expenses of defending itself against or investigating any claim of liability
in
the premises, except to the extent such loss, liability or expense is due to
the
negligence or bad faith of the Trustee, its agents or employees or such
predecessor Trustee. The obligations of the Issuer under this section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay
or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities upon all property
and funds
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held
or
collected by the Trustee as such, except funds held in trust for the benefit
of
the holders of particular Securities, and the Securities are hereby subordinated
to such senior claim.
When
the
Trustee incurs expenses or renders services in connection with an Event of
Default specified in clauses (d) or (e) of Section 4.01, the expenses (including
the reasonable charges and expenses of its counsel) and the compensation for
the
services are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar
law.
Section
5.07. Right
of Trustee to Rely on Officers’ Certificate, etc.
Subject
to Sections 5.01 and 5.02, whenever in the administration of the trusts of
this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on
the
part of the Trustee, be deemed to be conclusively proved and established by
an
Officers’ Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under
the
provisions of this Indenture upon the faith thereof.
Section
5.08. Persons
Eligible for Appointment as Trustee.
The
Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United States
of
America or the District of Columbia having a combined capital and surplus of
at
least $25,000,000, and which is eligible in accordance with the provisions
of
Section 310(a) of the Trust Indenture Act of 1939. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of a federal, state or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of
such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
Section
5.09. Resignation
and Removal; Appointment of Successor Trustee.
(a) The
Trustee, or any trustee or trustees hereafter appointed, may at any time resign
with respect to one or more or all series of Securities by giving written notice
of resignation to the Issuer and by mailing notice thereof by first class mail
to Holders of the applicable series of Securities at their last addresses as
they shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee or
trustees. If no successor trustee shall have been so appointed with respect
to
any series and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning trustee at the Issuer’s expense may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security
or
Securities of the applicable series for at least six months may, subject to
the
provisions of Section 4.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper
and
prescribe, appoint a successor trustee.
(b) In
case at
any time any of the following shall occur:
(i) the
Trustee shall fail to comply with the provisions of Section 310(b) of the Trust
Indenture Act of 1939 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a bona
fide
Holder of a Security or Securities of such series for at least six months;
or
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(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section
310(a) of the Trust Indenture Act of 1939 and shall fail to resign after written
request therefor by the Issuer or by any Securityholder; or
(iii) the
Trustee shall become incapable of acting with respect to any series of
Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or
liquidator of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then,
in
any such case, the Issuer may remove the Trustee with respect to the applicable
series of Securities and appoint a successor trustee for such series by written
instrument, in duplicate, executed by order of the Board of the Issuer, one
copy
of which instrument shall be delivered to the Trustee so removed and one copy
to
the successor trustee, or, subject to Section 315(e) of the Trust Indenture
Act
of 1939, any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months may on behalf of himself
and
all others similarly situated, petition any court of competent jurisdiction
for
the removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The
Holders of a majority in aggregate principal amount of the Securities of each
series at the time outstanding may at any time remove the Trustee with respect
to Securities of such series and appoint a successor trustee with respect to
the
Securities of such series by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the evidence provided for
in
Section 6.01 of the action in that regard taken by the
Securityholders.
(d) Any
resignation or removal of the Trustee with respect to any series and any
appointment of a successor trustee with respect to such series pursuant to
any
of the provisions of this Section 5.09 shall become effective upon acceptance
of
appointment by the successor trustee as provided in Section 5.10.
Section
5.10. Acceptance
of Appointment By Successor Trustee.
Any
successor trustee appointed as provided in Section 5.09 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect
as if
originally named as trustee for such series hereunder; but, nevertheless, on
the
written request of the Issuer or of the successor trustee, upon payment of
its
charges then unpaid, the trustee ceasing to act shall, subject to Section 9.04,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions
of
Section 5.06.
If
a
successor trustee is appointed with respect to the Securities of one or more
(but not all) series, the Issuer, the predecessor Trustee and each successor
trustee with respect to the Securities of any applicable series shall execute
and deliver an indenture supplemental hereto which shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and du-
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ties
of
the predecessor Trustee with respect to the Securities of any series as to
which
the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such trustees
co-trustees of the same trust and that each such trustee shall be trustee of
a
trust or trusts under separate indentures.
Upon
acceptance of appointment by any successor trustee as provided in this Section
5.10, the Issuer shall mail notice thereof by first-class mail to the Holders
of
Securities of any series for which such successor trustee is acting as trustee
at their last addresses as they shall appear in the Security register. If the
acceptance of appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined with the
notice called for by Section 5.09. If the Issuer fails to mail such notice
within ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Issuer.
Section
5.11. Merger,
Conversion, Consolidation or Succession to Business of Trustee.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated, or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be eligible under the provisions of Section 5.08, without
the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In
case at
the time such successor to the Trustee shall succeed to the trusts created
by
this Indenture any of the Securities of any series shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor Trustee and deliver such Securities so
authenticated; and, in case at that time any of the Securities of any series
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor Trustee; and in all such cases such certificate shall have
the
full force which it is anywhere in the Securities of such series or in this
Indenture provided that the certificate of the Trustee shall have; provided,
that the right to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Securities of any series in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
ARTICLE
6.
CONCERNING
THE SECURITYHOLDERS
Section
6.01. Evidence
of Action Taken by Securityholders.
Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage
in principal amount of the Securityholders of any or all series may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Sections 5.01 and 5.02) conclusive in favor of the Trustee
and
the Issuer, if made in the manner provided in this Article.
Section
6.02. Proof
of Execution of Instruments and of Holding of Securities; Record
Date.
Subject
to Sections 5.01 and 5.02, the execution of any instrument by a Securityholder
or his agent
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or
proxy
may be proved in accordance with such reasonable rules and regulations as may
be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee. The holding of Securities shall be proved by the Security register
or
by a certificate of the registrar thereof. The Issuer may set a record date
for
purposes of determining the identity of holders of Securities of any series
entitled to vote or consent to any action referred to in Section 6.01, which
record date may be set at any time or from time to time by notice to the
Trustee, for any date or dates (in the case of any adjournment or
reconsideration) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any
other
provisions hereof, only holders of Securities of such series of record on such
record date shall be entitled to so vote or give such consent or revoke such
vote or consent.
Section
6.03. Holders
to Be Treated as Owners.
The
Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor
or
the Trustee may deem and treat the person in whose name any Security shall
be
registered upon the Security register for such series as the absolute owner
of
such Security (whether or not such Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for the purpose of receiving
payment of or on account of the principal of and, subject to the provisions
of
this Indenture, interest on such Security and for all other purposes; and none
of the Issuer, the Guarantor, the Trustee or any agent of the Issuer, the
Guarantor or the Trustee shall be affected by any notice to the contrary. All
such payments so made to any such person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security.
Section
6.04. Securities
Owned by Issuer Deemed Not Outstanding.
In
determining whether the Holders of the requisite aggregate principal amount
of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being
made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which a Responsible Officer of the Trustee actually knows are
so
owned shall be so disregarded. Securities so owned which have been pledged
in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon
the
Securities or any person directly or indirectly controlling or controlled by
or
under direct or indirect common control with the Issuer or any other obligor
on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers’ Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 5.01
and
5.02, the Trustee shall be entitled to accept such Officers’ Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
Section
6.05. Right
of Revocation of Action Taken.
At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 6.01, of the taking of any action by the Holders of the percentage
in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action, any Holder
of a Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office
and
upon proof of holding as provided in this Article, revoke such action so far
as
concerns such Security. Except as aforesaid any such action taken by the Holder
of any Security shall be conclusive and
-29-
binding
upon such Holder and upon all future Holders and owners of such Security and
of
any Securities issued in exchange or substitution therefor or on registration
of
transfer thereof, irrespective of whether or not any notation in regard thereto
is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders
of
all the Securities affected by such action.
ARTICLE
7.
SUPPLEMENTAL
INDENTURES
Section
7.01. Supplemental
Indentures Without Consent of Securityholders.
The
Issuer, when authorized by a resolution of its Board (which resolutions may
provide general authorization for such action and may provide that the specific
terms of such action may be determined by officers of the Issuer authorized
thereby), and the Guarantor, when authorized by a resolution of the Guarantor’s
Board of Directors, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto for one or more of the
following purposes:
(a) to
convey,
transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more series any property or assets;
(b) to
evidence the succession of another legal entity to the Issuer or the Guarantor,
as the case may be, or successive successions, and the assumption by the
successor legal entity of the covenants, agreements and obligations of the
Issuer or the Guarantor, as the case may be, pursuant to Article 8;
(c) to
add to
the covenants of the Issuer or the Guarantor such further covenants,
restrictions, conditions or provisions as the Issuer, the Guarantor and the
Trustee shall consider to be for the protection of the Holders of Securities,
and to make the occurrence, or the occurrence and continuance, of a default
in
any such additional covenants, restrictions, conditions or provisions an Event
of Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, that in respect of
any
such additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of Default or
may
limit the remedies available to the Trustee upon such an Event of Default or
may
limit the right of the Holders of a majority in aggregate principal amount
of
the Securities of such series to waive such an Event of Default;
(d) to
cure
any ambiguity or to correct or supplement any provision contained herein or
in
any supplemental indenture which may be defective or inconsistent with any
other
provision contained herein or in any supplemental indenture; or to make such
other provisions in regard to matters or questions arising under this Indenture
or under any supplemental indenture as the Issuer or the Guarantor may deem
necessary or desirable and which shall not adversely affect the interests of
the
Holders of the Securities in any material respect;
(e) to
establish the form or terms of Securities of any series as permitted by Sections
2.01 and 2.03; and
-30-
(f) to
evidence and provide for the acceptance of appointment hereunder by a successor
trustee with respect to the Securities of one or more series and to add to
or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Section 5.10.
The
Trustee is hereby authorized to join with the Issuer and the Guarantor in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise.
Any
supplemental indenture authorized by the provisions of this section may be
executed without the consent of the Holders of any of the Securities at the
time
outstanding, notwithstanding any of the provisions of Section 7.02.
Section
7.02. Supplemental
Indentures With Consent of Securityholders.
With the
consent (evidenced as provided in Article 6) of the Holders of not less than
a
majority in aggregate principal amount of the Securities at the time Outstanding
of all series affected by such supplemental indenture (voting as one class),
the
Issuer, when authorized by a resolution of its Board (which resolutions may
provide general authorization for such action and may provide that the specific
terms of such action may be determined by officers of the Issuer authorized
thereby), and the Guarantor, when authorized by a resolution of the Guarantor’s
Board of Directors, and the Trustee may, from time to time and at any time,
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 any supplemental indenture or of modifying
in
any manner the rights of the Holders of the Securities of each such series;
provided that no such supplemental indenture shall (a) (i) extend the final
maturity of any Security, (ii) reduce the principal amount thereof, (iii) reduce
the rate or extend the time of payment of interest thereon, (iv) reduce any
amount payable on redemption thereof, (v) make the principal thereof (including
any amount in respect of original issue discount), or interest thereon payable
in any coin or currency other than that provided in the Securities or in
accordance with the terms thereof, (vi) modify or amend any provisions for
converting any currency into any other currency as provided in the Securities
or
in accordance with the terms thereof, (vii) reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 4.01 or the amount
thereof provable in bankruptcy pursuant to Section 4.02, (viii) modify or amend
any provisions relating to the conversion or exchange of the Securities for
securities of the Issuer or the Guarantor or of other entities or other property
(or the cash value thereof), including the determination of the amount of
securities or other property (or cash) into which the Securities shall be
converted or exchanged, other than as provided in the antidilution provisions
or
other similar adjustment provisions of the Securities or otherwise in accordance
with the terms thereof, or (ix) alter the provisions of Section 10.11 or Section
10.13 or impair or affect the right of any Securityholder to institute suit
for
the payment thereof or, if the Securities provide therefor, any right of
repayment at the option of the Securityholder, in each case without the consent
of the Holder of each Security so affected, or (b) reduce the aforesaid
percentage of Securities of any series, the consent of the Holders of which
is
required for any such supplemental indenture, without the consent of the Holders
of each Security so affected.
A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of holders of Securities of such series, with respect to such covenant
or
provision, shall be deemed not to affect the rights under this Indenture of
the
holders of Securities of any other series.
-31-
Upon
the
request of the Issuer, accompanied by a copy of a resolution of the Board (which
resolutions may provide general authorization for such action and may provide
that the specific terms of such action may be determined by officers of the
Issuer authorized thereby) certified by the secretary or an assistant secretary
of the Issuer authorizing the execution of any such supplemental indenture,
and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid and other documents, if any, required by Section 6.01, the Trustee
shall join with the Issuer and the Guarantor in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It
shall
not be necessary for the consent of the Securityholders under this section
to
approve the particular form of any proposed supplemental indenture, but it
shall
be sufficient if such consent shall approve the substance thereof.
Promptly
after the execution by the Issuer, the Guarantor and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give notice thereof by (a) first class mail to the Holders of Securities
of each series affected thereby at their addresses as they shall appear on
the
registry books of the Issuer or (b) by any other means set forth in such
supplemental indenture, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Trustee to mail such notice, or
any
defect therein, shall not, however, in any way impair or affect the validity
of
any such supplemental indenture.
Section
7.03. Effect
of Supplemental Indenture.
Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer, the Guarantor
and the Holders of Securities of each series affected thereby shall thereafter
be determined, exercised and enforced hereunder subject in all respects to
such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section
7.04. Documents
to Be Given to Trustee.
In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, 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 adversely affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise.
Section
7.05. Notation
on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any
supplemental indenture pursuant to the provisions of this Article may bear
a
notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Trustee and
the
Board, to any modification of this Indenture contained in any such supplemental
indenture may be prepared by the Issuer, authenticated by the Trustee and
delivered in exchange for the Securities of such series then
Outstanding.
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ARTICLE
8.
CONSOLIDATION,
MERGER, SALE OR CONVEYANCE
Section
8.01. Issuer
May Consolidate, etc., on Certain Terms.
The
Issuer covenants that it will not merge or consolidate with any other Person
other than the Guarantor or sell or convey all or substantially all of its
assets to any Person other than the Guarantor, unless (i) either the Issuer
shall be the continuing legal entity, or the successor legal entity or the
Person which acquires by sale or conveyance substantially all the assets of
the
Issuer (if other than the Issuer) shall expressly assume the due and punctual
payment of the principal of and interest on all the Securities, according to
their tenor, and the due and punctual performance and observance of all of
the
covenants and conditions of this Indenture to be performed or observed by the
Issuer, by supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such successor legal entity, and (ii) the Issuer
or
such successor legal entity, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in
the
performance of any such covenant or condition.
Section
8.02. Successor
Substituted.
In case
of any such consolidation, merger, sale or conveyance, and following such an
assumption by the successor legal entity, all in the manner described in Section
8.01, such successor legal entity shall succeed to and be substituted for the
Issuer, with the same effect as if it had been named herein. Such successor
legal entity may cause to be signed, and may issue either in its own name or
in
the name of the Issuer prior to such succession any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Issuer
and delivered to the Trustee; and, upon the order of such successor legal entity
instead of the Issuer and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities which previously shall have been signed and delivered by the
officers of the Issuer to the Trustee for authentication, and any Securities
which such successor legal entity thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the Securities so issued
shall
in all respects have the same legal rank and benefit under this Indenture as
the
Securities theretofore or thereafter issued in accordance with the terms of
this
Indenture as though all of such Securities had been issued at the date of the
execution hereof. Any required changes in phrasing and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
In
the
event of such assumption following any sale or conveyance in accordance with
Section 8.01 and this Section 8.02 (other than a conveyance by way of lease)
the
Issuer (including any successor legal entity that has been further substituted
in accordance with Section 8.01 and this Section 8.02) shall be discharged
from
all obligations and covenants under this Indenture and the Securities and may
be
liquidated and dissolved.
Section
8.03. Guarantor
May Consolidate, etc., on Certain Terms.
The
Guarantor covenants that it will not merge or consolidate with any other Person
other than the Issuer or sell, lease or convey all or substantially all of
its
assets to any other Person other than the Issuer, unless (i) either the
Guarantor shall be the continuing legal entity, or the successor legal entity
or
the Person which acquires by sale, lease or conveyance substantially all the
assets of the Guarantor shall expressly assume the due and punctual payment
of
the principal of and interest on all the Securities and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Guarantor, by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee
by
such successor legal entity, and (ii) the Guarantor, such Person or such
successor legal entity, as the case may be, shall not, immediately after such
merger or consolidation, or such sale, lease or conveyance, be in default in
the
performance of any such covenant or condition.
-33-
Section
8.04. Successor
Legal Entity Substituted for the Guarantor.
In case
of any such consolidation, merger, sale, lease or conveyance, and following
such
an assumption by the successor legal entity, all in the manner described in
Section 8.03, such successor legal entity shall succeed to and be substituted
for the Guarantor with the same effect as if it had been named herein and any
required changes in phrasing and form (but not in substance) may be made in
the
Securities thereafter to be issued as may be appropriate.
In
the
event of such assumption following any sale or conveyance in accordance with
Section 8.03 and this Section 8.04 (other than a conveyance by way of lease)
the
Guarantor (including any successor legal entity that has been further
substituted in accordance with section 8.03 and this section 8.04) shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
Section
8.05. Opinion
of Counsel to Trustee.
The
Trustee, subject to the provisions of Sections 5.01 and 5.02, shall receive
an
Opinion of Counsel, prepared in accordance with Section 10.05, as conclusive
evidence that any such consolidation, merger, sale, lease or conveyance, and
any
such assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Indenture.
ARTICLE
9.
SATISFACTION
AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section
9.01. Satisfaction
and Discharge of Indenture.
(a) If
at any
time (i) the Issuer or the Guarantor shall have paid or caused to be paid the
principal of and interest on all the Securities of any series outstanding
hereunder (other than Securities of such series which have been destroyed,
lost
or stolen and which have been replaced or paid as provided in Section 2.09)
as
and when the same shall have become due and payable, or (ii) the Issuer shall
have delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated (other than any Securities of such series which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.09) or (iii) (A) all the securities of such series
not
theretofore delivered to the Trustee for cancellation shall have become due
and
payable, or are by their terms to become due and payable within one year or
are
to be called for redemption within one year under arrangements satisfactory
to
the Trustee for the giving of notice of redemption, and (B) the Issuer or the
Guarantor shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys repaid
by
the Trustee or any paying agent to the Issuer in accordance with Section 9.04)
in the case of any series of Securities the payments on which may only be made
in United States dollars, direct obligations of the United States of America,
backed by its full faith and credit (“U.S. Government Obligations”), maturing as
to principal and interest at such times and in such amounts as will insure
the
availability of cash, or a combination thereof, sufficient to pay at maturity
or
upon redemption all Securities of such series (other than any Securities of
such
series which shall have been destroyed, lost or stolen and which shall have
been
replaced or paid as provided in Section 2.09) not theretofore delivered to
the
Trustee for cancellation, including principal and interest due or to become
due
on or prior to such date of maturity as the case may be, and if, in any such
case, the Issuer or the Guarantor shall also pay or cause to be paid all other
sums payable hereunder by the Issuer or the Guarantor with respect to Securities
of such series, then this Indenture shall cease to be of further effect with
respect to Securities of such series (except as to (i) rights of registration
of
transfer and exchange of securities of such series, and the Issuer’s right of
optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities, (iii) rights of holders to receive payments of
principal thereof and in
-34-
terest
thereon upon the original stated due date therefor (but no upon acceleration),
and remaining rights of the holders to receive mandatory sinking fund payments,
if any, (iv) the rights, obligations and immunities of the Trustee hereunder
and
(v) the rights of the Securityholders of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or
any
of them), and the Trustee, on demand of the Issuer or the Guarantor accompanied
by an Officers’ Certificate (or Guarantor’s Officer’s Certificate respectively)
and an Opinion of Counsel and at the cost and expense of the Issuer, shall
execute proper instruments acknowledging such satisfaction of and discharging
this Indenture with respect to such series; provided, that the rights of Holders
of the Securities to receive amounts in respect of principal of and interest
on
the Securities held by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any securities exchange upon
which the Securities are listed. The Issuer agrees to reimburse the Trustee
for
any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities
of
such series.
(b) The
following provisions shall apply to the Securities of each series unless
specifically otherwise provided in a Board Resolution, Officers’ Certificate or
indenture supplemental hereto provided pursuant to Section 2.03. In addition
to
discharge of the Indenture pursuant to the next preceding paragraph, in the
case
of any series of Securities the exact amounts (including the currency of
payment) of principal of and interest due on which can be determined at the
time
of making the deposit referred to in clause 9.01(b)(i) below, the Issuer and
the
Guarantor shall be deemed to have paid and discharged the entire indebtedness
on
all the Securities of such a series on the 91st day after the date of the
deposit referred to in clause 9.01(b)(i) below, and the provisions of this
Indenture with respect to the Securities of such series thereto shall no longer
be in effect (except as to (1) rights of registration of transfer and exchange
of Securities of such series and the Issuer’s right of optional redemption, if
any, (2) substitution of mutilated, defaced, destroyed, lost or stolen
Securities, (3) rights of Holders of Securities to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration), and remaining rights of the Holders to receive mandatory
sinking fund payments, if any, (4) the rights, obligations, duties and
immunities of the Trustee hereunder, (5) the rights of the Holders of Securities
of such series as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them and (6) the obligations of the
Issuer under Section 3.02) and the Trustee, at the expense of the Issuer or
the
Guarantor, shall at the Issuer’s or the Guarantor’s request, execute proper
instruments acknowledging the same, if:
(i) with
reference to this provision the Issuer or the Guarantor has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust funds
in trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series (A) cash in an amount,
or (B) in the case of any series of Securities the payments on which may only
be
made in Dollars, U.S. Government Obligations, maturing as to principal and
interest at such times and in such amounts as will insure the availability
of
cash or (C) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (1) the principal and
interest on all Securities of such series and coupons appertaining thereto
on
each date that such principal or interest is due and payable and (2) any
mandatory sinking fund payments on the dates on which such payments are due
and
payable in accordance with the terms of the Indenture and the Securities of
such
series;
(ii) such
deposit will not result in a breach or violation of, or constitute a default
under, any agreement or instrument to which the Issuer is a party or by which
it
is bound;
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(iii) the
Issuer
or the Guarantor has delivered to the Trustee an Opinion of Counsel based on
the
fact that (x) the Issuer has received from, or there has been published by,
the
Internal Revenue Service a ruling or (y) since the date hereof, there has been
a
change in the applicable federal income tax law, in either case to the effect
that, and such opinion shall confirm that, the Holders of the Securities of
such
series and coupons appertaining thereto will not recognize income, gain or
loss
for federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount and
in
the same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred; and
(iv) the
Issuer
or the Guarantor has delivered to the Trustee an Officers’ Certificate or
Guarantor’s Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to the defeasance contemplated
by
this provision have been complied with.
(c) Each
of
the Issuer and the Guarantor shall be released from its obligations under
Section 8.01 with respect to the Securities of any series, Outstanding, and
under any guarantee in respect thereof, on and after the date the conditions
set
forth below are satisfied (hereinafter, “covenant defeasance”). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of any series, and under a guarantee in respect thereof, the Issuer
and the Guarantor may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in such Sections, whether
directly or indirectly by reason of any reference elsewhere herein to such
Sections or by reason of any reference in such Sections to any other provision
herein or in any other document and such omission to comply shall not constitute
an Event of Default under Section 4.01, but the remainder of this Indenture
and
such Securities and coupons and the Guarantee shall be unaffected thereby.
The
following shall be the conditions to application of this subsection (c) of
this
Section 9.01:
(i) the
Issuer
or the Guarantor has irrevocably deposited or caused to be deposited with the
Trustee 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 the Securities of such series, (A) cash in an amount,
or (B) in the case of any series of Securities the payments on which may only
be
made in Dollars, U.S. Government Obligations maturing as to principal and
interest at such times and in such amounts as will insure the availability
of
cash or (C) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (1) the principal and
interest on all Securities of such series and coupons appertaining thereto
and
(2) any mandatory sinking fund payments on the day on which such payments are
due and payable in accordance with the terms of the Indenture and the Securities
of such series;
(ii) no
Event
of Default or event which with notice or lapse of time or both would become
an
Event of Default with respect to the Securities shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 4.01(c) and
4.01(d) are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period);
(iii) such
covenant defeasance shall not cause the Trustee to have a conflicting interest
for purposes of the Trust Indenture Act of 1939 with respect to any securities
of the Issuer;
-36-
(iv) such
covenant defeasance shall not result in a breach or violation of, or constitute
a default under, this Indenture or any other agreement or instrument to which
the Issuer or any Guarantor is a party or by which either of them is
bound;
(v) such
covenant defeasance shall not cause any Securities then listed on any registered
national securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted;
(vi) the
Issuer
or the Guarantor shall have delivered to the Trustee an Officers’ Certificate or
Guarantor’s Officers’ Certificate, as the case may be, and Opinion of Counsel to
the effect that the Holders of the Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if
such covenant defeasance had not occurred; and
(vii) the
Issuer
or the Guarantor shall have delivered to the Trustee an Officers’ Certificate or
Guarantor’s Officers’ Certificate, as the case may be, and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to
the
covenant defeasance contemplated by this provision have been complied
with.
Section
9.02. Application
by Trustee of Funds Deposited for Payment of Securities.
Subject
to Section 9.04 and any subordination provisions applicable to the Securities,
all moneys deposited with the Trustee pursuant to Section 9.01 shall be held
in
trust and applied by it to the payment, either directly or through any paying
agent (including the Issuer acting as its own paying agent), to the Holders
of
the particular Securities of such series for the payment or redemption of which
such moneys have been deposited with the Trustee, of all sums due and to become
due thereon for principal and interest; but such money need not be segregated
from other funds except to the extent required by law.
Section
9.03. Repayment
of Moneys Held by Paying Agent.
In
connection with the satisfaction and discharge of this Indenture with respect
to
Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect
to
such moneys.
Section
9.04. Return
of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years.
Any
moneys deposited with or paid to the Trustee or any paying agent for the payment
of the principal of or interest on any Security of any series and not applied
but remaining unclaimed for two years after the date upon which such principal
or interest shall have become due and payable, shall, upon the written request
of the Issuer and unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the
Issuer by the Trustee for such series or such paying agent, and the Holder
of
the Security of such series shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease.
The
Issuer
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 9.01 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of Outstanding Securities.
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ARTICLE
10.
MISCELLANEOUS
PROVISIONS
Section
10.01. Incorporators,
Stockholders, Members, Officers and Directors of Issuer and Guarantor Exempt
from Individual Liability.
No
recourse under or upon any obligation, covenant or agreement contained in this
Indenture, or in any Security, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such or against any past, present
or
future stockholder (except in a stockholder’s corporate capacity as Guarantor),
member, officer or director, as such, of the Issuer or the Guarantor or of
any
successor, either directly or through the Issuer or the Guarantor, as the case
may be, or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Securities by the holders thereof and as part of the
consideration for the issue of the Securities.
Section
10.02. Provisions
of Indenture for the Sole Benefit of Parties and Securityholders.
Nothing
in this Indenture or in the Securities, expressed or implied, shall give or
be
construed to give to any person, firm or corporation, other than the parties
hereto and their successors, the holders of Senior Debt and the Holders of
the
Securities, any legal or equitable right, remedy or claim under this Indenture
or under any covenant or provision herein contained, all such covenants and
provisions being for the sole benefit of the parties hereto and their
successors, the holders of Senior Debt and of the Holders of the
Securities.
Section
10.03. Successors
and Assigns of Issuer and Guarantor Bound by Indenture.
All the
covenants, stipulations, promises and agreements in this Indenture contained
by
or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not. All the covenants, stipulations, promises and agreements
in
this Indenture contained by or in behalf of the Guarantor shall bind its
successors and assigns, whether so expressed or not.
Section
10.04. Notices
and Demands on Issuer, Trustee and Securityholders.
Any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders of Securities
to or on the Issuer or the Guarantor may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address is filed with the Trustee) as
follows:
If
to the
Issuer:
Xxxxxxxxx
Xxxxx
0
Xxxxxx
Xxxxxx
Xxxxxxxx
XX00
Xxxxxxx
If
to the
Guarantor:
Amarin
Corporation plc
0
Xxxxxx
Xxxxxx
Xxxxxxx
Xxxxxx
XXX
0XX
Xxxxxxx
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Attention:
Chief Financial Officer
Fax:
with
copies to:
Amarin
Corporation plc
00
Xxxxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxx
0
Xxxxxxx
Attention:
General Counsel
Fax:
Xxxxxx
Xxxxxx & Xxxxxxx LLP
00
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxxxxxx X. Xxx
Fax:
(000)
000-0000
Any
notice, direction, request or demand by the Issuer, the Guarantor or any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if delivered in person or mailed by first-class
mail to the Trustee at
[ ],
Attention:
[ ].
Where
this
Indenture provides for notice to Holders, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder entitled thereto, at his last
address as it appears in the Security register. 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 or irregularities in regular mail service, it
shall be impracticable to mail notice to the Issuer, the Guarantor or the
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall
be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section
10.05. Officers’
Certificates and Opinions of Counsel; Statements to Be Contained
Therein.
Upon any
application or demand by the Issuer or the Guarantor to the Trustee to take
any
action under any of the provisions of this Indenture, the Issuer or the
Guarantor, as the case may be, shall furnish to the Trustee an Officers’
Certificate or Guarantor’s Officers’ Certificate, as the case may be, stating
that all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand as to which
the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for
in
this Indenture shall include (a) a
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statement
that the person making such certificate or opinion has read such covenant or
condition, (b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to whether or not,
in
the opinion of such person, such condition or covenant has been complied
with.
Any
certificate, statement or opinion of an officer of the Issuer or the Guarantor
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters, information with respect to which is in the
possession of the Issuer or the Guarantor, as the case may be, upon the
certificate, statement or opinion of or representations by an officer of
officers of the Issuer or the Guarantor, as the case may be, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based
as
aforesaid are erroneous, or in the exercise of reasonable care should know
that
the same are erroneous.
Any
certificate, statement or opinion of an officer of the Issuer or the Guarantor
or of counsel may be based, insofar as it relates to accounting matters, upon
a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as
the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any
certificate or opinion of any independent firm of public accountants filed
with
the Trustee shall contain a statement that such firm is
independent.
Section
10.06. Payments
Due on Saturdays, Sundays and Holidays.
If the
date of maturity of interest on or principal of the Securities of any series
or
the date fixed for redemption or repayment of any such Security shall not be
a
Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
Section
10.07. Conflict
of Any Provision of Indenture with Trust Indenture Act of 1939.
If and
to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture by operation of
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939 (an
“incorporated provision”), such incorporated provision shall
control.
Section
10.08. New
York Law to Govern.
This
Indenture and each Security shall be deemed to be a contract under the laws
of
the State of New York, and for all purposes shall be governed by and construed
in accordance with the laws of the State of New York without regard to
principles of conflicts of law.
Section
10.09. Counterparts.
This
Indenture may be executed in any number of counterparts, each of which shall
be
an original; but such counterparts shall together constitute but one and the
same instrument.
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Section
10.10. Effect
of Headings.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section
10.11. Securities
in a Non-U.S. Currency.
Unless
otherwise specified in an Officers’ Certificate delivered pursuant to Section
2.03 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time Outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars, then the principal amount
of Securities of such series which shall be deemed to be Outstanding for the
purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate. For purposes of this
Section 10.11, Market Exchange Rate shall mean the noon Dollar buying rate
in
New York City for cable transfers of that currency as published by the Federal
Reserve Bank of New York. If such Market Exchange Rate is not available for
any
reason with respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in The City of New York or in the country of issue
of the currency in question, or such other quotations as the Trustee shall
deem
appropriate. The provisions of this paragraph shall apply in determining the
equivalent principal amount in respect of Securities of a series denominated
in
a currency other than Dollars in connection with any action taken by Holders
of
Securities pursuant to the terms of this Indenture.
All
decisions and determinations of the Trustee regarding the Market Exchange Rate
or any alternative determination provided for in the preceding paragraph shall
be in its sole discretion and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and irrevocably
binding upon the Issuer and all Holders.
Section
10.12. Submission
to Jurisdiction.
Each of
the Issuer and the Guarantor agrees that any legal suit, action or proceeding
arising out of or based upon this Indenture may be instituted in any federal
or
state court sitting in New York City, and, to the fullest extent permitted
by
law, waives any objection which it may now or hereafter have to the laying
of
venue of any such proceeding, and irrevocably submits to the jurisdiction of
such court in any suit, action or proceeding. Each of the Issuer and the
Guarantor, as long as any of the Securities remain Outstanding or the parties
hereto have any obligation under this Indenture, shall have an authorized agent
(the “Authorized Agent”) in the United States upon whom process may be served in
any such legal action or proceeding. Service of process upon such agent and
written notice of such service mailed or delivered to it shall to the extent
permitted by law be deemed in every respect effective service of process upon
it
in any such legal action or proceeding and, if it fails to maintain such agent,
any such process or summons may be served by mailing a copy thereof by
registered mail, or a form of mail substantially equivalent thereto, addressed
to it at its address as provided for notices hereunder. Each of the Issuer
and
the Guarantor hereby appoints Xx. Xxxxxx X. Xxxxxxx, Managing Director,
Xxxxxxx & Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx, as
its agent for such purposes, and covenants and agrees that service of process
in
any legal action or proceeding may be made upon it at such office of such
agent.
Section
10.13. Judgment
Currency.
Each of
the Issuer and the Guarantor agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in respect of
the
principal of or interest on the Securities of any series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day
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is
not a
New York Banking Day, then, to the extent permitted by applicable law, the
rate
of exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not
be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount
of
the Required Currency expressed to be payable in respect of such payments,
(ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which
such
actual receipt shall fall short of the full amount of the Required Currency
so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions
in
The City of New York are authorized or required by law or executive order to
close.
ARTICLE
11.
REDEMPTION
OF SECURITIES AND SINKING FUNDS
Section
11.01. Applicability
of Article.
The
provisions of this Article shall be applicable to the Securities of any series
which are redeemable before their maturity or to any sinking fund for the
retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.03 for Securities of such series.
Section
11.02. Notice
of Redemption; Partial Redemptions.
Notice
of redemption to the Holders of Securities of any series to be redeemed as
a
whole or in part at the option of the Issuer shall be given by mailing notice
of
such redemption by first class mail, postage prepaid, at least 30 days and
not
more than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon
the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the notice
to the Holder of any Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Security of such series.
The
notice
of redemption to each such Holder shall specify the principal amount of each
Security of such series held by such Holder to be redeemed, the date fixed
for
redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities, that such
redemption is pursuant to the mandatory or optional sinking fund, or both,
if
such be the case, that interest accrued to the date fixed for redemption will
be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In
case
any Security of a series is to be redeemed in part only the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and
shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The
notice
of redemption of Securities of any series to be redeemed at the option of the
Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee
in the name and at the expense of the Issuer.
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On
or
before the redemption date specified in the notice of redemption given as
provided in this Section, the Issuer will deposit with the Trustee or with
one
or more paying agents (or, if the Issuer is acting as its own paying agent,
set
aside, segregate and hold in trust as provided in Section 3.04) an amount of
money or other property sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If
less
than all the outstanding Securities of a series are to be redeemed, the Issuer
will deliver to the Trustee at least 70 days prior to the date fixed for
redemption an Officers’ Certificate stating the aggregate principal amount of
Securities to be redeemed.
If
less
than all the Securities of a series are to be redeemed, the Trustee shall
select, in such manner as it shall deem appropriate and fair, Securities of
such
series to be redeemed in whole or in part. Securities may be redeemed in part
in
multiples equal to the minimum authorized denomination for Securities of such
series or any multiple thereof. The Trustee shall promptly notify the Issuer
in
writing of the Securities of such series selected for redemption and, in the
case of any Securities of such series selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Securities of any series shall relate, in the case of any Security redeemed
or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
Section
11.03. Payment
of Securities Called for Redemption.
If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable
on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and
on
and after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest accrued to said
date)
interest on the Securities or portions of Securities so called for redemption
shall cease to accrue and, except as provided in Sections 5.05 and 9.04, such
Securities shall cease from and after the date fixed for redemption to be
entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right
to
receive the redemption price thereof and unpaid interest to the date fixed
for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption;
provided that any semiannual payment of interest becoming due on the date fixed
for redemption shall be payable to the Holders of such Securities registered
as
such on the relevant record date subject to the terms and provisions of Sections
2.03 and 2.04 hereof.
If
any
Security called for redemption shall not be so paid upon surrender thereof
for
redemption, the principal shall, until paid or duly provided for, bear interest
from the date fixed for redemption at the rate of interest or Yield to Maturity
(in the case of an Original Issue Discount Security) borne by such
Security.
Upon
presentation of any Security redeemed in part only, the Issuer shall execute
and
the Trustee shall authenticate and deliver to or on the order of the Holder
thereof, at the expense of the Issuer, a new Security or Securities of such
series, of authorized denominations, in principal amount equal to the unredeemed
portion of the Security so presented.
Section
11.04. Exclusion
of Certain Securities from Eligibility for Selection for
Redemption.
Securities shall be excluded from eligibility for selection for redemption
if
they are identified by registration and certificate number in a written
statement signed by an authorized officer of the Issuer and delivered to the
Trustee at least 40 days prior to the last date on which notice of redemption
may be given as being owned of record and beneficially by, and not pledged
or
hypothecated by either (a)
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the
Issuer
or (b) an entity specifically identified in such written statement as directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
Section
11.05. Mandatory
and Optional Sinking Funds.
The
minimum amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a “mandatory sinking fund
payment”, and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an “optional sinking
fund payment”. The date on which a sinking fund payment is to be made is herein
referred to as the “sinking fund payment date”.
In
lieu of
making all or any part of any mandatory sinking fund payment with respect to
any
series of Securities in cash, the Issuer may at its option (a) deliver to the
Trustee Securities of such series theretofore purchased or otherwise acquired
(except upon redemption pursuant to the mandatory sinking fund) by the Issuer
or
receive credit for Securities of such series (not previously so credited)
theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer
and delivered to the Trustee for cancellation pursuant to Section 2.07, (b)
receive credit for optional sinking fund payments (not previously so credited)
made pursuant to this Section, or (c) receive credit for Securities of such
series (not previously so credited) redeemed by the Issuer through any optional
redemption provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On
or
before the sixtieth day next preceding each sinking fund payment date for any
series, the Issuer will deliver to the Trustee a written statement (which need
not contain the statements required by Section 10.05) signed by an authorized
officer of the Issuer (a) specifying the portion of the mandatory sinking fund
payment to be satisfied by payment of cash and the portion to be satisfied
by
credit of Securities of such series, (b) stating that none of the Securities
of
such series has theretofore been so credited, (c) stating that no defaults
in
the payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to
pay
on or before the next succeeding sinking fund payment date. Any Securities
of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such written statement (or
reasonably promptly thereafter if acceptable to the Trustee). Such written
statement shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such sixtieth day, to
deliver such written statement and Securities specified in this paragraph,
if
any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Issuer (i) that the mandatory sinking
fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Issuer will
make
no optional sinking fund payment with respect to such series as provided in
this
Section.
If
the
sinking fund payment or payments (mandatory or optional or both) to be made
in
cash on the next succeeding sinking fund payment date plus any unused balance
of
any preceding sinking fund payments made in cash shall exceed $50,000 (or a
lesser sum if the Issuer shall so request) with respect to the Securities of
any
particular series, such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking
fund redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 or less and the Issuer makes no
such
request then it shall be carried over until a sum in excess of $50,000 is
available.
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The
Trustee shall select, in the manner provided in Section 11.02, for redemption
on
such sinking fund payment date a sufficient principal amount of Securities
of
such series to absorb said cash, as nearly as may be, and shall (if requested
in
writing by the Issuer) inform the Issuer of the serial numbers of the Securities
of such series (or portions thereof) so selected. Securities of any series
which
are (a) owned by the Issuer or an entity known by the Trustee to be directly
or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer, as shown by the Security register, and not known to
the
Trustee to have been pledged or hypothecated by the Issuer or any such entity
or
(b) identified in an Officers’ Certificate at least 60 days prior to the sinking
fund payment date as being beneficially owned by, and not pledged or
hypothecated by, the Issuer or an entity directly or indirectly controlling
or
controlled by or under direct or indirect common control with the Issuer shall
be excluded from Securities of such series eligible for selection for
redemption. The Trustee, in the name and at the expense of the Issuer (or the
Issuer, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the
manner provided in Section 11.02 (and with the effect provided in Section 11.03)
for the redemption of Securities of such series in part at the option of the
Issuer. The amount of any sinking fund payments not so applied or allocated
to
the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall
be
applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which are not held for
the
payment or redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the principal of, and interest on, the Securities of such series
at
maturity.
On
or
before each sinking fund payment date, the Issuer shall pay to the Trustee
in
cash or shall otherwise provide for the payment of all interest accrued to
the
date fixed for redemption on Securities to be redeemed on the next following
sinking fund payment date.
The
Trustee shall not redeem or cause to be redeemed any Securities of a series
with
sinking fund moneys or give any notice of redemption of Securities for such
series by operation of the sinking fund during the continuance of a default
in
payment of interest on such Securities or of any Event of Default except that,
where the mailing of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall redeem or cause to be redeemed such
Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default
shall
occur, and any moneys thereafter paid into the sinking fund, shall, during
the
continuance of such default or Event of Default, be deemed to have been
collected under Article 4 and held for the payment of all such Securities.
In
case such Event of Default shall have been waived as provided in Section 4.09
or
the default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
ARTICLE
12.
GUARANTEE
Section
12.01. The
Guarantee.
The
Guarantor hereby jointly and severally unconditionally guarantees to each Holder
of a Security of any series with respect to which an Officers’ Certificate or
supplemental indenture relating to such series indicates that the Securities
of
such series are entitled to the benefits of the Guarantee that has been
authenticated and delivered by the Trustee the due and punctual payment of
the
principal of, any premium and interest on, and any additional amounts with
respect to such Security and the due and punctual payment of the sinking fund
payments (if any) provided
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for
pursuant to the terms of such Security, when and as the same shall become due
and payable, whether at maturity, by acceleration, redemption, repayment or
otherwise, in accordance with the terms of such Security and of this Indenture.
In case of the failure of the Issuer punctually to pay any such principal,
premium, interest, additional amounts or sinking fund payment, the Guarantor
hereby jointly and severally agrees to cause any such payment to be made
punctually when and as the same shall become due and payable, whether at
maturity, upon acceleration, redemption, repayment or otherwise, and as if
such
payment were made by the Issuer.
Section
12.02. Net
Payments.
All
payments of principal of and premium, if any, interest and any other amounts
on,
or in respect of, the Securities of any series shall be made by the Guarantor
without withholding or deduction at source for, or on account of, any present
or
future taxes, fees, duties, assessments or governmental charges of whatever
nature imposed or levied by or on behalf of Bermuda, or another jurisdiction
in
which the Issuer or Guarantor, or a successor of any of them, is organized,
is
resident or engaged in business for tax purposes or through which payments
are
made on or in connection with the Securities, (the “taxing jurisdiction”) or any
political subdivision or taxing authority thereof or therein, unless such taxes,
fees, duties, assessments or governmental charges are required to be withheld
or
deducted by (i) the laws (or any regulations or ruling promulgated thereunder)
of a taxing jurisdiction or any political subdivision or taxing authority
thereof or therein or (ii) an official position regarding the application,
administration, interpretation or enforcement of any such laws, regulations
or
rulings (including, without limitation, a holding by a court of competent
jurisdiction or by a taxing authority in a taxing jurisdiction or any political
subdivision thereof). If a withholding or deduction at source is required,
the
Guarantor shall, subject to certain limitations and exceptions set forth below,
pay to the Holder of any such Security such additional amounts as may be
necessary so that every net payment of principal, premium, if any, interest
or
any other amount made to such Holder, after such withholding or deduction,
shall
not be less than the amount provided for in such Security, and this Indenture
to
be then due and payable; provided, however, that the Guarantor shall not be
required to make payment of such additional amounts for or on account
of:
(a) any
tax,
fee, duty, assessment or governmental charge of whatever nature which would
not
have been imposed but for the fact that such Holder: (A) was a resident,
domiciliary or national of, or engaged in business or maintained a permanent
establishment or was physically present in, the relevant taxing jurisdiction
or
any political subdivision thereof or otherwise had some connection with the
relevant taxing jurisdiction other than by reason of the mere ownership of,
or
receipt of payment under, such Security; (B) presented such Security for payment
in the relevant taxing jurisdiction or any political subdivision thereof, unless
such Security could not have been presented for payment elsewhere; or (C)
presented such Security more than thirty (30) days after the date on which
the
payment in respect of such Security first became due and payable or provided
for, whichever is later, except to the extent that the Holder would have been
entitled to such additional amounts if it had presented such Security for
payment on any day within such period of thirty (30) days;
(b) any
estate, inheritance, gift, sale, transfer, personal property or similar tax,
assessment or other governmental charge;
(c) any
tax,
assessment or other governmental charge that is imposed or withheld by reason
of
the failure by the Holder or the beneficial owner of such Security to comply
with any reasonable request by the Guarantor addressed to the Holder within
90
days of such request (A) to provide information concerning the nationality,
residence or identity of the Holder or such beneficial owner or (B) to make
any
declaration or other similar claim or satisfy any information or reporting
requirement, which, in the case of (A) or (B), is required or imposed by
statute, treaty,
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regulation
or administrative practice of the relevant taxing jurisdiction or any political
subdivision thereof as a precondition to exemption from all or part of such
tax,
assessment or other governmental charge; or
(d) any
combination of items (a), (b) and (c);
(e) nor
shall
additional amounts be paid with respect to any payment of the principal of,
or
premium, if any, interest or any other amounts on, any such Security to any
Holder who is a fiduciary or partnership or other than the sole beneficial
owner
of such Security to the extent such payment would be required by the laws of
the
relevant taxing jurisdiction (or any political subdivision or relevant taxing
authority thereof or therein) to be included in the income for tax purposes
of a
beneficiary or partner or settlor with respect to such fiduciary or a member
of
such partnership or a beneficial owner who would not have been entitled to
such
additional amounts had it been the Holder of the Security.
Whenever
in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium, interest or any other amounts on, or in respect
of,
any Security of any series or the net proceeds received on the sale or exchange
of any Security of any series, such mention shall be deemed to include mention
of the payment of additional amounts provided by the terms of such series
established hereby or pursuant hereto to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant
to
such terms, and express mention of the payment of additional amounts (if
applicable) in any provision hereof shall not be construed as excluding the
payment of additional amounts in those provisions hereof where such express
mention is not made.
Section
12.03. Guarantee
Unconditional, etc.
The
Guarantor hereby agrees that its obligations hereunder shall be as principal
and
not merely as surety, and shall be absolute, irrevocable and unconditional,
irrespective of, and shall be unaffected by, any invalidity, irregularity or
unenforceability of any Security or this Indenture, any failure to enforce
the
provisions of any Security or this Indenture, or any waiver, modification,
consent or indulgence granted with respect thereto by the Holder of such
Security or the Trustee, the recovery of any judgment against the Issuer or
any
action to enforce the same, or any other circumstances which may otherwise
constitute a legal or equitable discharge of a surety or guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger, insolvency or bankruptcy of the
Issuer, any right to require a proceeding first against the Issuer, protest
or
notice with respect to any such Security or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Guarantee will not be
discharged except by payment in full of the principal of, any premium and
interest on, and any additional amounts and sinking fund payments required
with
respect to, the Securities and the complete performance of all other obligations
contained in the Securities. The Guarantor further agrees, to the fullest extent
that it lawfully may do so, that, as between the Guarantor, on the one hand,
and
the Holders and the Trustee, on the other hand, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Section 4.01 hereof for
the
purposes of this Guarantee, notwithstanding any stay, injunction or prohibition
extant under any bankruptcy, insolvency, reorganization or other similar law
of
any jurisdiction preventing such acceleration in respect of the obligations
guaranteed hereby.
Section
12.04. Reinstatement.
This
Guarantee shall continue to be effective or be reinstated, as the case may
be,
if at any time payment on any Security, in whole or in part, is rescinded or
must otherwise be restored to the Issuer or the Guarantor upon the bankruptcy,
liquidation or reorganization of the Issuer or otherwise.
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Section
12.05. Subrogation.
The
Guarantor agrees that it shall not be entitled to any right of subrogation
in
relation to the Holders of any Security against the Issuer in respect of any
amounts paid to such Holder by the Guarantor pursuant to the provisions of
this
Guarantee; provided, however, that the 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, any premium and interest on, and any
additional amounts and sinking fund payments required with respect to, all
Securities shall have been paid in full.
Section
12.06. Limitation
on Liability.
The
Guarantor, and by his acceptance of Securities, each Holder, hereby confirms
that it is the intention of all such parties that the Guarantee of the Guarantor
not constitute a fraudulent transfer or conveyance for purposes of any state
law
for the relief of debtors or any fraudulent conveyance law or fraudulent
transfer law to the extent applicable to the Guarantor.
Section
12.07. Assumption
by Guarantor.
(a) The
Guarantor may, without the consent of the Holders, assume all of the rights
and
obligations of the Issuer hereunder with respect to a series of Securities
and
under the Securities of such series if, after giving effect to such assumption,
no Event of Default or event which with the giving of notice or lapse of time,
or both, would become an Event of Default, shall have occurred and be
continuing. Upon such an assumption, the Guarantor shall execute a supplemental
indenture evidencing its assumption of all such rights and obligations of the
Issuer and the Issuer shall be released from its liabilities hereunder and
under
such Securities as obligor on the Securities of such series.
(b) The
Guarantor shall assume all of the rights and obligations of the Issuer hereunder
with respect to a series of Securities and under the Securities of such series
if, upon a default by the Issuer in the due and punctual payment of the
principal, sinking fund payment, if any, premium, if any, or interest on such
Securities, the Guarantor is prevented by any court order or judicial proceeding
from fulfilling its obligations under Section 12.01 with respect to such series
of Securities. Such assumption shall result in the Securities of such series
becoming the direct obligations of the Guarantor and shall be effected without
the consent of the Holders of the Securities of any series. Upon such an
assumption, the Guarantor shall execute a supplemental indenture evidencing
its
assumption of all such rights and obligations of the Issuer, and the Issuer
shall be released from its liabilities hereunder and under such Securities
as
obligor on the Securities of such series.
ARTICLE
13.
SUBORDINATION
OF SECURITIES
Section
13.01. Agreement
to Subordinate.
Each of
the Issuer and the Guarantor covenants and agrees, and each Holder of a Security
issued hereunder by his acceptance thereof likewise covenants and agrees, that
all Securities shall be issued subject to the provisions of this Article; and
each person holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that the principal of (and
premium, if any) and interest on all Securities issued hereunder shall, to
the
extent and in the manner set forth herein, subject to any modifications or
additional terms set forth in any applicable supplemental indenture, be
subordinated and subject in right to the prior payment in full of all Senior
Debt.
Section
13.02. Payments
to Holders of Securities.
In the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
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proceeding
in connection therewith, relative to the Issuer or the Guarantor or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Issuer or the Guarantor, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy, and (c)
any
assignment for the benefit of creditors or any other marshalling of assets
and
liabilities of the Issuer or the Guarantor, then and in any such event the
holders of Senior Debt shall be entitled to receive payment in full of all
amounts due or to become due on or in respect of all Senior Debt (including
any
interest accruing thereon after the commencement of any such case or
proceeding), or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Debt,
before the Holders of the Securities are entitled to receive any payment on
account of principal of (or premium, if any) or interest on the Securities,
and
to that end the holders of Senior Debt shall be entitled to receive, for
application to the payment thereof, any payment or distribution of any kind
or
character, whether in cash, property or securities, including any such payment
or distribution which may be payable or deliverable by reason of the payment
of
any other indebtedness of the Issuer or the Guarantor being subordinated to
the
payment of the Securities, which may be payable or deliverable in respect of
the
Securities in any such case, proceeding, dissolution or other winding up
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 Issuer or the Guarantor of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of
any
other indebtedness of the Issuer or the Guarantor being subordinated to the
payment of the Securities, before all Senior Debt 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 Issuer or the Guarantor for application to
the
payment of all Senior Debt remaining unpaid, to the extent necessary to pay
all
Senior Debt in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
For
purposes of this Article only, the words “cash, property or securities” shall
not be deemed to include shares of stock of the Issuer or the Guarantor as
reorganized or readjusted, or securities of the Issuer or the Guarantor or
any
other corporation or other entity provided for by a plan of reorganization
or
readjustment which are subordinated in right of payment to all Senior Debt
which
may at the time be outstanding to substantially the same extent as, or to a
greater extent than, the Securities are pursuant to the provisions in this
Article. The consolidation of the Issuer or the Guarantor with, or the merger
of
the Issuer or the Guarantor into, another legal entity or the liquidation or
dissolution of the Issuer or the Guarantor following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
legal entity upon the terms and conditions provided in Article 8 shall not
be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this section if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Article 8.
Section
13.03. No
Payment When Senior Debt Is in Default.
Subject
to the last paragraph of this Section, (a) in the event and during the
continuation of any default in the payment of principal of (or premium, if
any)
or interest on any Senior Debt beyond any applicable grace period with respect
thereto (but not if such default in payment shall have been cured or waived
or
shall have ceased to exist), or (b) in the event that the holders of such Senior
Debt (or a trustee on behalf of the holders thereof) have declared such Senior
Debt due and payable prior to the date on which it would otherwise have become
due and payable by reason of an event of default (but not if such declaration
of
acceleration shall have been rescinded or annulled), then no payment (including
any payment which may be payable
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by
reason
of the payment of any other indebtedness of the Issuer or the Guarantor being
subordinated to the payment of the Securities) shall be made by the Issuer
or
the 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,
other than pursuant to their conversion, if any; provided, however, that nothing
in this Section shall prevent the satisfaction of any sinking fund payment
in
accordance with Article 11 by delivering and crediting pursuant to Section
11.05
Securities which have been acquired (upon redemption or otherwise) prior to
such
default in payment.
In
the
event that, notwithstanding the foregoing, the Issuer or the Guarantor shall
make any payment to the Trustee or the Holder of any Security prohibited by
the
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 Issuer or the Guarantor, as the case may be.
Section
13.04. Payment
Permitted in Certain Situations.
Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Securities shall prevent (a) the Issuer or the 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 marshalling of
assets and liabilities of the Issuer or the Guarantor, as the case may be,
referred to in Section 13.02 or under the conditions described in Section 13.03,
from making payments at any time of or on account of the principal of (and
premium, if any) or interest on the Securities or on account of the purchase
or
other acquisition of the Securities, or (b) the application by the Trustee
of
any money deposited with it hereunder to the payment of or on account of the
principal of (and premium, if any) or interest on the Securities or the
retention of such payment by the Holders, if, at the time of such application
by
the Trustee, it did not have knowledge that such payment would have been
prohibited by the provisions of this Article.
Section
13.05. Subrogation
to Rights of Holders of Senior Debt.
Subject
to the payment in full of all Senior Debt or the provision for such payment
in
cash or cash equivalents or otherwise in a manner satisfactory to the holders
of
Senior Debt, the Holders of the Securities shall be subrogated to the extent
of
the payments or distributions made to the holders of such Senior Debt pursuant
to the provisions of this Article (equally and ratably with the holders of
indebtedness of the Issuer or the Guarantor which by its express terms is
subordinated to the indebtedness of the Issuer or the Guarantor, as the case
may
be, to substantially the same extent as the Securities are subordinated to
the
Senior Debt and is entitled to like rights of subrogation) to the rights of
the
holders of such Senior Debt to receive payments and distributions of cash,
property and securities applicable to the Senior Debt until the principal of
(and premium, if any) and interest on the Securities shall be paid in full.
For
purposes of such subrogation, no payments or distributions to the holders of
the
Senior Debt of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to
the
holders of Senior Debt by Holders of the Securities or the Trustee, shall,
as
among the Issuer or the Guarantor, as the case may be, its creditors other
than
holders of Senior Debt and the Holders of the Securities, be deemed to be a
payment or distribution by the Issuer or the Guarantor to or on account of
the
Senior Debt.
Section
13.06. Provisions
Solely to Define Relative Rights.
The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to
or
shall (a) impair, as among the Issuer or the Guarantor, as the case may be,
its
creditors other than holders of Senior Debt and the Holders of the Securities,
the obligation of the Issuer or the Guarantor, which is absolute and
unconditional, 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
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(b)
affect
the relative rights against the Issuer or the Guarantor of the Holders of the
Securities and creditors of the Issuer or the Guarantor, as the case may be,
other than the holders of Senior Debt; or (c) prevent the Trustee or the Holder
of any Security from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this
Article of the holders of Senior Debt to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
Section
13.07. 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
13.08. No
Waiver of Subordination Provisions.
No right
of any present or future holder of any Senior Debt to enforce subordination
as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Issuer or the Guarantor or by any
act
or failure to act, in good faith, by any such holder, or by any non compliance
by the Issuer or the 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.
Section
13.09. Notice
to Trustee.
The
Issuer or the Guarantor shall give prompt written notice to the Trustee of
any
fact known to the Issuer or the Guarantor, as the case may be, which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge
of
the existence of any facts which would prohibit the making of any payment to
or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Issuer or the Guarantor or a
holder of Senior Debt or from any trustee therefor; and, prior to the receipt
of
any such written notice, the Trustee, subject to the provisions of Section
5.01,
shall be entitled in all respects to assume that no such facts
exist.
Subject
to
the provisions of Section 5.01, 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 Debt (or a trustee therefor) to establish that such notice
has
been given by a holder of Senior Debt (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 Debt to participate
in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee
as
to the amount of Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section
13.10. Reliance
on Judicial Order or Certificate of Liquidating Agent.
Upon any
payment or distribution of assets of the Issuer or the Guarantor referred to
in
this Article, the Trustee, subject to the provisions of Section 5.01, 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 Senior Debt and other indebtedness of the Issuer
or
the Guarantor, as
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the
case
may be, 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
13.11. Trustee
Not Fiduciary for Holders of Senior Debt.
The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt and shall not be liable to any such holders or creditors if it shall in
good faith pay over or distribute to Holders of Securities or to the Issuer
or
the Guarantor or to any other Person cash, property or securities to which
any
holders of Senior Debt shall be entitled by virtue of this Article or
otherwise.
Section
13.12. Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee’s
Rights.
The
Trustee in its individual capacity shall be entitled to all the rights set
forth
in this Article with respect to any Senior Debt which may at any time be held
by
it, to the same extent as any other holder of Senior Debt and nothing in this
Indenture shall deprive the Trustee of any of its rights as such
holder.
Nothing
in
this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 5.06.
Section
13.13. Article
Applicable to Paying Agents.
In case
at any time any paying agent other than the Trustee shall have been appointed
by
the Issuer 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.
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IN
WITNESS
WHEREOF, the parties hereto have caused this Indenture to be duly executed
as of
_____________, ____.
EXECUTED
AND DELIVERED
AS
A DEED
BY
AMARIN
FINANCE LTD.,
AS
ISSUER
By: _________________________________________
Name:
Title:
EXECUTED
AND DELIVERED
AS
A DEED
BY
AMARIN
CORPORATION PLC,
AS
GUARANTOR, ACTING BY,
By: _________________________________________
Name:
Title:
Director
By: _________________________________________
Name:
Title:
Director/Company Secretary
[ ],
AS
TRUSTEE
By: _________________________________________
