Exhibit 4.6
-----------
NEWMONT MINING CORPORATION, as Issuer
AND
CITIBANK, N.A., as Trustee
INDENTURE
Dated as of ______, ____
---------------------
SUBORDINATED DEBT SECURITIES
NEWMONT MINING CORPORATION, as Issuer
AND
CITIBANK, N.A., as Trustee
TRUSTEE
INDENTURE
Dated as of ______, ____
------------
Reference is made to the following provisions of the Trust Indenture
Act of 1939, as amended, which establish certain duties and responsibilities of
the Issuer and the Trustee which are not set forth in this Indenture:
Section Subject Section Section
310(b) Disqualification of Trustee for 315(c) Duties of claims Trustee in case of default
conflicting Securityholders
311 Preferential collection of Trustee as 315(d) Provisions relating to responsibility of
creditor of Issuer Trustee
312(a) Periodic filing of information by Issuer 315(e) Assessment of costs against litigating
with Trustee Securityholders in certain circumstances
312(b) Access of Securityholders to information 316(a) Directions to and waivers by Securityholders
in certain circumstances
313(b) Additional reports of Trustee to 316(b) Prohibition or impairment of right of
Securityholders Securityholders to payment
314(c) Evidence of compliance with conditions 316(c) Right of Issuer to set record date for
precedent certain purposes
315(a) Duties of Trustee prior to default 317(a) Special Powers of Trustee
315(b) Notice of default from Trustee to 318(a) Provisions of Act to control in case of
Securityholders conflict
TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS.......................................................1
SECTION 1.1. Certain Terms Defined.......................................1
ARTICLE TWO SECURITIES .......................................................7
SECTION 2.1. Forms Generally.............................................7
SECTION 2.2. Form of Face of Security....................................8
SECTION 2.3. Form of Reverse of Security................................11
SECTION 2.4. [Intentionally Omitted]....................................15
SECTION 2.5. Form of Trustee's Certificate of Authentication............15
SECTION 2.6. Amount Unlimited; Issuable in Series.......................16
SECTION 2.7. Authentication and Delivery of Securities..................18
SECTION 2.8. Execution of Securities....................................19
SECTION 2.9. Certificate of Authentication..............................20
SECTION 2.10. [Intentionally Omitted]...................................20
SECTION 2.11. Denomination and Date of Securities; Payments of
Interest.............................................20
SECTION 2.12. Registration, Transfer and Exchange.......................21
SECTION 2.13. Mutilated, Defaced, Destroyed, Lost and
Stolen Securities....................................23
SECTION 2.14. Cancellation of Securities Paid, etc......................24
SECTION 2.15. Temporary Securities......................................24
SECTION 2.16. CUSIP Numbers.............................................25
SECTION 2.17. Form of Election to Convert...............................25
ARTICLE THREE COVENANTS OF THE ISSUER........................................27
SECTION 3.1. Payment of Principal and Interest..........................27
SECTION 3.2. Offices for Payments, etc..................................27
SECTION 3.3. Paying Agents..............................................27
SECTION 3.4. Notice of Default..........................................28
SECTION 3.5. Calculation of Original Issue Discount.....................28
SECTION 3.6. Reports....................................................28
SECTION 3.7. Compliance Certificates....................................29
ARTICLE FOUR REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT...................29
SECTION 4.1. Events of Default..........................................29
SECTION 4.2. Payment of Securities on Default; Suit Therefor............32
SECTION 4.3. Application of Moneys Collected by Trustee.................33
SECTION 4.4. Proceedings by Trustee.....................................34
SECTION 4.5. Restoration of Rights on Abandonment of Proceedings........34
SECTION 4.6. Proceedings by Securityholders.............................35
(i)
Page
SECTION 4.7. Remedies Cumulative and Continuing.........................35
SECTION 4.8. Control by Securityholders..................................35
SECTION 4.9. Waiver of Past Defaults....................................36
ARTICLE FIVE CONCERNING THE TRUSTEE..........................................36
SECTION 5.1. Reliance on Documents, Opinions, etc.; No Requirement
for Expenditure of Own Funds.........................36
SECTION 5.2. No Responsibility for Recitals, etc........................38
SECTION 5.3. Trustee and Agents May Hold Securities.....................38
SECTION 5.4. Moneys to Be Held in Trust.................................38
SECTION 5.5. Compensation and Expenses of Trustee.......................39
SECTION 5.6. Right of Trustee to Rely on Officers' Certificate, etc.....39
SECTION 5.7. Eligibility of Trustee.....................................39
SECTION 5.8. Resignation or Removal of Trustee; Appointment of
Successor Trustee....................................40
SECTION 5.9. Acceptance of Appointment by Successor Trustee.............41
SECTION 5.10. Merger, Conversion, Consolidation or Succession to
Business of Trustee..................................42
SECTION 5.11. Reports by Trustee to Securityholders.....................42
ARTICLE SIX CONCERNING THE SECURITYHOLDERS...................................43
SECTION 6.1. Action by Securityholders..................................43
SECTION 6.2. Proof of Execution by Securityholders......................44
SECTION 6.3. Holders to Be Treated as Owners............................44
SECTION 6.4. Securities Owned by Issuer Deemed Not Outstanding..........44
SECTION 6.5. Right of Revocation of Action Taken........................45
SECTION 6.6. Securityholders' Meetings; Purposes........................45
SECTION 6.7. Call of Meetings by Trustee................................46
SECTION 6.8. Call of Meetings by Issuer or Securityholders..............46
SECTION 6.9. Qualifications for Voting..................................46
SECTION 6.10. Quorum; Adjourned Meetings................................46
SECTION 6.11. Regulations...............................................47
SECTION 6.12. Voting....................................................48
SECTION 6.13. No Delay of Rights by Meeting.............................48
SECTION 6.14. Written Consent in Lieu of Meeting........................48
ARTICLE SEVEN SUPPLEMENTAL INDENTURES........................................49
SECTION 7.1. Supplemental Indentures Without Consent of
Securityholders......................................49
SECTION 7.2. Supplemental Indentures With Consent of Securityholders....50
SECTION 7.3. Effect of Supplemental Indenture...........................51
SECTION 7.4. Certain Documents to Be Given to Trustee...................51
SECTION 7.5. Notation on Securities.....................................52
(ii)
Page
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE..............52
SECTION 8.1. Issuer May Consolidate, etc., on Certain Terms.............52
SECTION 8.2. Successor Entity to Be Substituted.........................52
SECTION 8.3. Opinion of Counsel and Officers' Certificate to Be
Given to Trustee.....................................53
ARTICLE NINE SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS.......................53
SECTION 9.1. Satisfaction and Discharge of Indenture....................53
SECTION 9.2. Application by Trustee of Funds Deposited for
Payment of Securities................................54
SECTION 9.3. Repayment of Moneys Held by Paying Agent...................54
SECTION 9.4. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years..............................54
SECTION 9.5. Option to Effect Defeasance ...............................55
SECTION 9.6. Defeasance and Discharge...................................55
SECTION 9.7. Conditions to Defeasance...................................55
SECTION 9.8. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions.....56
ARTICLE TEN REDEMPTION OF SECURITIES AND SINKING FUNDS.......................57
SECTION 10.1. Applicability of Article..................................57
SECTION 10.2. Notice of Redemption; Selection of Securities.............57
SECTION 10.3. Payment of Securities Called for Redemption...............59
SECTION 10.4. Exclusion of Certain Securities from Eligibility
for Selection for Redemption.........................59
SECTION 10.5. Mandatory and Optional Sinking Funds......................59
SECTION 10.6. Conversion Arrangement on Call for Redemption..............62
ARTICLE ELEVEN SUBORDINATION OF SECURITIES...................................63
SECTION 11.1. Agreement that Securities Subordinated to
Extent Provided......................................63
SECTION 11.2. Liquidation, Dissolution, Bankruptcy......................63
SECTION 11.3. Default on Issuer Senior Indebtedness; Subrogation........64
SECTION 11.4. Obligation of the Issuer Unconditional....................65
SECTION 11.5. No Fiduciary Duty to Holders of Issuer
Senior Indebtedness..................................65
SECTION 11.6. Notice to Trustee and Paying Agent of Facts
Prohibiting Payments.................................65
SECTION 11.7. Application by Trustee of Moneys..........................66
SECTION 11.8. Subordination Rights Not Impaired By Acts or Omissions of
Issuer or Holders of Issuer Senior Indebtedness..66
SECTION 11.9. Authorization of Trustee to Effectuate
Subordination of Securities..........................66
SECTION 11.10. Certain Issuances Deemed Payment..........................66
SECTION 11.11. Reliance on Judicial Order or Certificate
of Liquidating Agent.................................67
(iii)
Page
ARTICLE TWELVE CONVERSION OF SECURITIES......................................67
SECTION 12.1. General...................................................67
SECTION 12.2. Right to Convert..........................................67
SECTION 12.3. Manner of Exercise of Conversion Privilege; Delivery
of Common Stock; No Adjustment for
Interest or Dividends................................68
SECTION 12.4. Cash Payments in Lieu of Fractional Shares................69
SECTION 12.5. Conversion Price Adjustments; Effect of
Reclassification, Mergers, Consolidations
and Sales of Assets.................................69
SECTION 12.6. Taxes on Shares Issued....................................73
SECTION 12.7. Shares to be Fully Paid; Compliance with
Governmental Requirements; Listing of Common Stock...73
SECTION 12.8. Responsibility of Trustee.................................73
SECTION 12.9. Covenant to Reserve Shares................................74
SECTION 12.10. Other Conversions.........................................74
ARTICLE THIRTEEN [Intentionally Omitted].....................................74
ARTICLE FOURTEEN MISCELLANEOUS PROVISIONS....................................74
SECTION 14.1. Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability..............74
SECTION 14.2. Provisions of Indenture for the Sole Benefit of Parties
and Securityholders..................................74
SECTION 14.3. Successors and Assigns of Issuer Bound by Indenture.......75
SECTION 14.4. Notices and Demands on Issuer, Trustee and
Securityholders......................................75
SECTION 14.5. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein...................75
SECTION 14.6. Official Acts by Successor Entity.........................76
SECTION 14.7. Payments Due on Saturdays, Sundays and Legal Holidays.....76
SECTION 14.8. NEW YORK LAW TO GOVERN....................................77
SECTION 14.9. Counterparts..............................................77
SECTION 14.10. Effect of Headings........................................77
SECTION 14.11. Conflict with Trust Indenture Act.........................77
(iv)
THIS INDENTURE, dated as of ______, ____ between NEWMONT MINING
CORPORATION, a Delaware corporation (the "Issuer"), and CITIBANK, N.A., a
national banking association duly incorporated and existing under the laws of
the United States of America (the "Trustee").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Issuer has duly authorized the issuance from time to time
of its unsecured, subordinated bonds, debentures, notes and other evidences of
indebtedness to be issued in one or more series (the "Securities") up to such
principal amount or amounts and denominated in United States dollars or foreign
currency or units or composites of two or more thereof as may from time to time
be authorized in accordance with the terms of this Indenture and to provide,
among other things, for the authentication, delivery and administration thereof,
the Issuer has duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture, when executed
and delivered by the parties hereto, 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 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 ONE
DEFINITIONS
SECTION 1.1. Certain Terms Defined. The following terms (except as
herein otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939, as amended to the date of this Indenture as originally executed, or the
definitions of which in the Securities Act of 1933, as amended to the date of
this Indenture as originally executed, are referred to in the Trust Indenture
Act of 1939 (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. 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.
"Assets" has the meaning set forth in Section 12.5.
"Blockage Notice" has the meaning set forth in Section 11.3.
"Board of Directors" means with respect to the Issuer either the Board
of Directors of the Issuer or any committee of such Board of Directors duly
authorized to act hereunder.
"Business Day" means, except as otherwise provided pursuant to Section
2.5 for Securities of any series, any day that is not a Saturday or Sunday and
that is not a day on which banking institutions are generally authorized or
obligated by law to close in The City of New York.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act of 1939, then the body performing such duties on such date.
"Common Stock" means the common stock of the Issuer, par value $1.60
per share.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any thereof which are
by their terms extendible or renewable at the option of the obligor thereon to a
time more than 12 months after the time as of which the amount thereof is being
computed and excluding current maturities of long-term indebtedness and capital
lease obligations) and (b) all goodwill, all as shown in the most recent
consolidated balance sheet of the Issuer and its Subsidiaries computed in
accordance with generally accepted accounting principles.
"Conversion Price" means, with respect to any series of Securities
which are convertible into Common stock, the price per share of Common Stock at
which the Securities of such series are so convertible as set forth in the
Resolution with respect to such series (or in any supplemental indenture entered
into pursuant to Article Seven with respect to such series), as the same may be
adjusted from time to time in accordance with Section 12.5 (or such supplemental
indenture pursuant to Section 12.1).
"Corporate Trust Office" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Global Agency & Trust Services, or such other address
as the Trustee may designate from time to time by notice to the Holders and the
Issuer, or the principal corporate trust office of any successor Trustee (or
such other address as a successor Trustee may designate from time to time by
notice to the Holders and the Issuer).
"defeasance" has the meaning set forth in Section 9.6.
"Depositary" means, with respect to the Securities of any series or
Tranche issuable or issued in the form of one or more Global Securities, the
Person designated as
2
Depositary for such Global Securities by the Issuer pursuant to Section 2.6
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 for such Global Securities, and if at any
time there is more than one Person designated as Depositary for Global
Securities of a particular series or Tranche, "Depositary", as used with respect
to the Securities of such series or Tranche, means the Depositary with respect
to the particular Global Security or Securities.
"Dollar or U.S.$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"euro" means the currency introduced on January 1, 1999 at the start
of the third stage of economic and monetary union pursuant to the treaty
establishing the European Community.
"Event of Default" means any event or condition specified as such in
Section 4.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Security" means a Security evidencing all or a part of a
series or Tranche of Securities, issued to the Depositary for such series or
Tranche, as the case may be, in accordance with Section 2.7 and bearing the
legend prescribed in Section 2.7.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms means a Person in whose name a Security is registered in the Register.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended and/or
supplemented from time to time, and shall include (i) for all purposes of this
instrument and any supplemental indenture, the provisions of the Trust Indenture
Act of 1939 that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively, and (ii) the forms and terms of
particular series of Securities established as contemplated hereunder.
"Interest" means, when used with respect to a non-interest bearing
Security, interest payable after the principal thereof has become due and
payable whether at maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise.
"Issuer" means Newmont Mining Corporation, a Delaware corporation,
until any successor corporation shall have become such pursuant to Article Eight
and thereafter "Issuer" shall mean such successor except as otherwise provided
in Section 8.2.
"Issuer Senior Indebtedness" means the principal of, premium, if any,
and interest (including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Issuer under applicable
bankruptcy, insolvency or similar law now or hereafter in effect) on (a) all
indebtedness for money borrowed, whether outstanding on the date of execution of
this Indenture or thereafter created, assumed or incurred, except such
indebtedness as is by its terms expressly stated to be not superior in right of
payment to the
3
Securities or to rank pari passu with the Securities or as identified in a
Resolution or any indenture supplemental hereto as not superior in right of
payment or to rank pari passu with the Securities and (b) any deferrals,
renewals or extensions of any such indebtedness for money borrowed. The term
"indebtedness for money borrowed" as used in the foregoing sentence means any
obligation of, or any obligation guaranteed by, the Issuer for the repayment of
borrowed money, whether or not evidenced by bonds, debentures, notes or other
written instruments, and any deferred obligation for the payment of the purchase
price of property or assets.
"mandatory sinking fund payment" has the meaning set forth in Section
10.5.
"Market Exchange Rate" has the meaning set forth in Section 6.1.
"New York Location" means the location in the Borough of Manhattan,
The City of New York, at which at any particular time the Trustee receives and
redelivers securities, which location at the date of execution of this Indenture
is 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"NNM" has the meaning set forth in Section 12.5(v).
"Officers' Certificate" means when used with respect to the Issuer, a
certificate signed by the chairman of the Board of Directors, the president, the
executive vice president or any senior vice president and by the treasurer,
controller, or the secretary of the Issuer and delivered to the Trustee. Each
such certificate shall include the statements required by the Trust Indenture
Act of 1939 or as provided for in Section 14.5, if and to the extent required
hereby.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer and who shall be
satisfactory to the Trustee. Each such opinion shall include the statements
required by the Trust Indenture Act of 1939 or as provided for in Section 14.5,
if and to the extent required hereby.
"optional sinking fund payment" has the meaning set forth in Section
10.5.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
redemption or a declaration of acceleration of the maturity thereof pursuant to
Section 4.1.
"Outstanding" (except as otherwise required by the Trust Indenture Act
of 1939), when used with reference to Securities, shall, subject to the
provisions of Section 6.4, mean, as of any particular time, all Securities
theretofore authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
4
(b) Securities, or portions thereof, which have become due and for the
payment or redemption of which moneys in the necessary amount shall have
been theretofore deposited in trust with the Trustee or with any paying
agent (other than the Issuer) or shall have been set aside, segregated and
held in trust by the Issuer for the Holders of such Securities (if the
Issuer shall act as its own paying agent); and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.13, or which shall have been paid pursuant to Section
2.13.
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 that shall be deemed to be Outstanding for such purposes in the case of
an Original Issue Discount Security or (unless as otherwise established pursuant
to Section 2.6) in the case of a Security which provides that an amount other
than the face amount thereof will or may be payable upon the maturity thereof or
a declaration of acceleration of the maturity thereof 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 4.1.
"Overdue Rate" means, unless otherwise specified in the Securities of
any series, the same rate as the rate of interest specified in the Securities of
such series or, in the case of a series of Original Issue Discount Securities,
the Yield to Maturity of such series of Securities.
"Payment Blockage Period" has the meaning set forth in Section 11.3.
"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".
"Principal Property" means any mine, together with any fixtures
comprising a part thereof, and any plant or other facility, together with any
land upon which such plant or other facility is erected and fixtures comprising
a part thereof, used primarily for mining or processing, in each case, located
in the United States of America and the net book value of which on the date as
of which the determination is being made exceeds 5% of Consolidated Net Tangible
Assets; provided, that Principal Property shall not include (a) any mine, plant
or facility which, in the opinion of the Board of Directors of the Issuer, is
not of material importance to the total business conducted by the Issuer and its
Subsidiaries as an entirety or (b) any portion of a particular mine, plant or
facility which, in the opinion of the Issuer is not of material importance to
the use or operation of such mine, plant or facility.
"record date" has the meaning set forth in Section 2.11.
"Register" has the meaning set forth in Section 2.12.
5
"Representative" means the indenture trustee or other trustee, agent
or representative for an issue of Issuer Senior Indebtedness or, in the case of
any Issuer Senior Indebtedness for which there is no indenture trustee, agent or
representative, any holder of such Issuer Senior Indebtedness.
"Resolution" means a resolution of the Board of Directors, including
without limitation any such resolution by which or pursuant to which any series
of Securities is authorized and established pursuant to Section 2.6.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, any senior trust officer, trust officer, any assistant trust
officer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means any Subsidiary (a) substantially all of
the property of which is located, or substantially all of the business of which
is carried on, within the United States of America and (b) which owns a
Principal Property; provided, that Restricted Subsidiary shall not include any
Subsidiary the primary business of which consists of financing operations in
connection with leasing and conditional sales transactions on behalf of the
Issuer and its Subsidiaries, and/or purchasing accounts receivable and/or making
loans secured by accounts receivable or inventory, or which is otherwise
primarily engaged in the business of a finance company.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" (except as otherwise required by the Trust
Indenture Act of 1939) has the meaning stated in the first recital of this
Indenture or means any Securities that have been issued, authenticated and
delivered under this Indenture, as the context may require.
"Security registrar" has the meaning set forth in Section 2.12.
"Series", as used in the definitions of "Indenture" and "Overdue Rate"
in this Section 1.1 and as used in Section 2.6 (except as used in the first
sentence of the second paragraph thereof and in the first and last sentences of
the third paragraph thereof), 2.10, 2.11, 2.12, 2.13, 2.15, 3.1, 3.2, 3.3
(except as used in the fourth paragraph thereof), 10.1, 10.2, 10.3 and 10.5,
means "Tranche" for any Securities of a series of Securities consisting of more
than one Tranche.
"sinking fund payment date" has the meaning set forth in Section 10.5.
"Specified currency" has the meaning set forth in Section 6.1.
"Subsidiary" means any corporation or any other entity of which at
least a majority of the outstanding stock or other ownership interests having by
the terms thereof ordinary voting
6
power for the election of directors, managers or trustees of such corporation or
any other entity or other persons performing similar functions (irrespective of
whether or not at the time stock or other ownership interests of any other class
or type of such corporation or entity shall have or might have voting power by
reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by the Issuer, or by one or more other
Subsidiaries, or by the Issuer and one or more other Subsidiaries.
"Time of Determination" has the meaning set forth in Section 12.5.
"Trading Day" has the meaning set forth in Section 12.5.
"Tranche" means all Securities of the same series having the same
Original Issue Date, interest rate, maturity, repayment and redemption
provisions.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939, as amended, as in
force at the date as of which this Indenture was originally executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act of 1939" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee. If pursuant to the provisions of this Indenture
there shall be at any time more than one Trustee hereunder, the term "Trustee"
as used with respect to Securities of any series shall mean the Trustee or
Trustees with respect to the Securities of that series.
"U.S. Government Obligations" has the meaning set forth in Section
9.8.
"vice president", (i) when used with respect to the Issuer, means the
executive vice president and any senior vice president, (ii) when used with
respect to 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, in the case of any Original Issue Discount
Security, the yield to maturity specified in such Security or in a Resolution
relating thereto.
ARTICLE TWO
SECURITIES
SECTION 2.1. Forms Generally. The Securities of each series shall be
substantially in the form set forth in this Article, or in such other form as
shall be established by or pursuant to a Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such letters,
numbers or other marks of identification and such legends or endorsements as may
be required to comply
7
with any applicable law, rule or regulation or with the
rules of any securities exchange or as may, consistent with the provisions of
this Indenture, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities. In the case of Securities of any
series that are denominated in a coin or currency (including composite
currencies or currency units) that is, or may be, replaced by the euro, the form
of such Securities may contain such insertions, omissions, substitutions and
other variations as may be deemed appropriate or required.
In the case of Securities of any series that are convertible at the
option of Holders into shares of Common Stock, the form of election to convert
shall be substantially in the form set forth in Section 2.17, or in such other
form as shall be established by or pursuant to a Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may be imprinted or otherwise reproduced on the Securities of
such series.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.2. Form of Face of Security. [If the Security is an Original
Issue Discount Security, insert any legend required by the Internal Revenue Code
of 1986, as amended and the regulations thereunder.]
8
No.
$_____________ CUSIP No. ________
NEWMONT MINING CORPORATION
[Insert Designation of Series]
Newmont Mining Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Issuer"), for value
received, hereby promises to pay to ________, or registered assigns, the
principal sum of ____________________ on _______________ [if the Security is to
bear interest prior to maturity, insert--, and to pay interest thereon [[insert
as applicable--annually or semi-annually or quarterly]] on [[insert appropriate
interest payment dates]] (the "Interest Payment Dates") in each year, commencing
_____________, [insert--at the rate of __% per annum or, if applicable, insert
the method for determining the adjustable, floating or other form of variable
interest rate borne by the Securities] until the principal hereof is paid or
made available for payment [if applicable, insert --, and (to the extent that
the payment of such interest shall be legally enforceable) at the rate of __%
per annum on any overdue principal and premium, if any, and on any overdue
installment of interest]. Notwithstanding the foregoing, this Security shall
bear interest from the most recent Interest Payment Date to which interest in
respect hereof has been paid or duly provided for, unless (i) the date hereof is
such an Interest Payment Date, in which case from the date hereof, or (ii) no
interest has been paid on this Security, in which case from ____________;
provided, however, that if the Issuer shall default in the payment of interest
due on the date hereof, then this Security shall bear interest from the next
preceding Interest Payment Date to which Interest has been paid or, if no
interest has been paid on this Security from __________. Notwithstanding the
foregoing, if the date hereof is after the _________ [insert if applicable-- or
__________] (whether or not a Business Day) (the "Record Date"), [insert if
applicable-- as the case may be,] next preceding an Interest Payment Date and
before such Interest Payment Date, this Security shall bear interest from such
Interest Payment Date; provided, however, that if the Issuer shall default in
the payment of interest due on such Interest Payment Date, then this Security
shall bear interest from the next preceding Interest Payment Date to which
interest has been paid or, if no interest has been paid on this Security, from
_________. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, subject to certain exceptions provided in the
Indenture referred to on the reverse hereof, be paid to the Person in whose name
this Security is registered at the close of business on the Record Date next
preceding such Interest Payment Date. Unless otherwise specified for the
Security pursuant to Section 2.6, insert - [Interest on this Security will be
computed and paid on the basis of a 360-day year of twelve 30-day months.]
[If the Security is not to bear interest prior to maturity,
insert--The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at maturity and in such case the overdue principal of this Security shall bear
interest at the rate of __% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any
9
overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of __% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
Payment of the principal of and [if applicable, insert--any such]
interest on this Security will be made at the office or agency of the Issuer
maintained for that purpose in [insert the places of payment], in [insert the
currency or currencies of payment]; provided, however, that at the option of the
Issuer payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security register.
[If the Security is an extendible security, insert--The Securities of
this series are subject to repayment on [insert provisions with respect to
repayment date or dates] at the option of the Holders thereof exercisable on or
before the _________________, but not prior to the _______________ preceding
such ____________, at a repayment price equal to the principal amount thereof to
be repaid, together with interest payable thereon to the repayment date, as
described on the reverse side hereof.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
NEWMONT MINING CORPORATION
By
-----------------------------
Attest:
---------------------------
10
SECTION 2.3. Form of Reverse of Security.
NEWMONT MINING CORPORATION
This Security is one of a duly authorized issue of subordinated
securities of the Issuer (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of ___________,
(herein called the "Indenture"), among the Issuer and Citibank, N.A., as Trustee
(herein called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Issuer, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable,
insert--limited in aggregate principal amount to _________]. The separate series
of Securities may be issued in various aggregate principal amounts, may mature
at different times, may bear interest, if any, at different rates, may be
subject to different redemption provisions (if any), may be subject to different
sinking or purchase funds (if any), may have different conversion provisions (if
any), may be subject to different repayment provisions (if any), may be subject
to different covenants and Events of Default and may otherwise vary as in the
Indenture provided. The Indenture further provides that the Securities of a
single series may be issued at various times, with different maturity dates, may
bear interest, if any, at different rates, may be subject to different
redemption provisions (if any), may be subject to different sinking or purchase
funds (if any) and may be subject to different repayment provisions (if any).
The Securities of this series are subordinated to Issuer Senior
Indebtedness, as defined in the Indenture. To the extent provided in the
Indenture, Issuer Senior Indebtedness must be paid before the Securities of this
series may be paid. The Issuer agrees, and each Securityholder by accepting a
Security agrees, to the subordination provisions contained in the Indenture and
authorizes the Trustee to give them effect and appoints the Trustee as
attorney-in-fact for such purpose.
[If applicable, insert -- The Securities of this series may not be
redeemed prior to maturity.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, [[if
applicable, insert --(1) on ______ in any year commencing with the year ______
and ending with the year ____ through operation of the sinking fund for this
series (as more fully described in the next succeeding paragraph) at [[insert
either--a redemption price equal to 100% of the principal amount of the
Securities to be redeemed or the redemption prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below,]], and (2)]] at any time [[if applicable,
insert--on or after ________]], as a whole or in part, at the election of the
Issuer, at the [[insert either--following redemption prices or redemption prices
for redemption otherwise than through operation of the sinking fund]] (expressed
as percentages of the principal amount): if redeemed [[if applicable, insert--on
or before ________, __%, and if redeemed]] during the 12-month period beginning
________ of the years indicated,
11
Redemption Price [[If applicable, insert -
---------------------
For Redemption Price For Redemption
[[if applicable, insert - Otherwise Than
---------------------
Through Operation Through Operation
Year of the Sinking Fund]] of the Sinking Fund]]
---- --------------------- -------------------
and thereafter at a redemption price equal to __% of the principal amount
thereof, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the date fixed for
redemption, but interest installments maturing on or prior to such redemption
date will be payable to the Holders of such Securities of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert--The sinking fund for this series provides for
the redemption on ________ in each year beginning with the year ____ and ending
with the year ____ of [[not less than]] $________ [[("mandatory sinking fund
payments") and not more than $________]] aggregate principal amount of
Securities of this series.] [If applicable, insert--Securities of this series
acquired or redeemed by the Issuer otherwise than through [[mandatory]] sinking
fund payments [[if applicable insert -- and Securities of this series
surrendered to the Issuer for conversion]] may be credited against subsequent
[[mandatory]] sinking fund payments otherwise required to be made.]
[If applicable, insert--Notwithstanding the foregoing, the Issuer may
not, prior to ________, redeem any Securities of this series as contemplated by
[[Clause (2) of]] the preceding paragraph as a part of, or in anticipation of,
any refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Issuer (calculated in accordance with
generally accepted financial practice) of less than __% per annum.]
[If applicable, insert--Partial redemptions must be in an amount not
less than $______________ principal amount of Securities.]
[If applicable, insert--In the event of redemption of this Security in
part only, a new Security or Securities of this series for the unredeemed
portion hereof having the same interest rate and maturity as this Security will
be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is convertible at the option of the Holder, insert--
Subject to the provisions of the Indenture, the Holder hereof has the right at
his option at any time until the close of business of the third Business Day
preceding the maturity date hereof (except that, in case this Security shall be
called for redemption before maturity, such right shall terminate in respect of
this
12
Security at the close of business on the third Business Day preceding the date
fixed for redemption of this Security unless the Issuer shall default in payment
due upon such redemption) to convert this Security (or any portion hereof which
is [[insert minimum denomination]] or an integral multiple thereof) into fully
paid and nonassessable shares of Common Stock, at the initial Conversion Price
of [[U.S.$]]_________ per share of Common Stock, subject to such adjustment, if
any, of the Conversion Price and the securities or other property issuable upon
conversion as may be required by the provisions of the Indenture, but only upon
surrender of this Security to the Trustee or to the conversion agent for
surrender to the Issuer in accordance with the instructions on file with the
conversion agent, accompanied by a written notice of election to convert, which
shall be substantially in the Form of Election to Convert contained in the
Indenture, and (if required by the Issuer) by an instrument or instruments of
transfer, in form satisfactory to the Issuer, duly executed by the Holder or by
his attorney duly authorized in writing. No payment or adjustment is to be made
on conversion of this Security for interest accrued hereon or for dividends on
Common Stock issued on conversion; provided, however, that if this Security is
surrendered for conversion after the Record Date for a payment of interest and
on or before the Interest Payment Date, then, notwithstanding such conversion,
the interest falling due on such Interest Payment Date will be paid to the
person in whose name this Security is registered at the close of business on
such Record Date and any Security surrendered for conversion during the period
from the close of business on any Record Date to the opening of business on the
corresponding Interest Payment Date must be accompanied by payment of an amount
equal to the interest payable on such Interest Payment Date. No fractional
shares shall be issuable upon any conversion, but in lieu thereof the Issuer
shall make an adjustment therefor in cash as provided in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, then the Trustee or the Holders of not less than 25% in
aggregate principal amount (calculated as provided in the Indenture) of the
Securities of this series then Outstanding may declare the principal of the
Securities of this series and accrued interest thereon, if any, to be due and
payable in the manner and with the effect provided in the Indenture.] [If the
Security is an Original Issue Discount Security, insert--If an Event of Default
with respect to Securities of this series shall occur and be continuing, then
the Trustee or the Holders of not less than 25% in aggregate principal amount
(calculated as provided in the Indenture) of the Securities of this series then
Outstanding may declare an amount of principal of the Securities of this series
due and payable in the manner and with the effect provided in the Indenture.
Such amount shall be equal to [[insert formula for determining the amount]].]
[If the Security is an extendible security, insert --The Securities of
this series are subject to repayment in whole, or in part, on [insert month, day
and years], in increments of _______ or multiples of _______ in excess of
______, provided that the portion of the principal amount of any Security of
this series not being repaid shall be at least _____, at the option of the
Holder thereof at a repayment price equal to the principal amount thereof to be
repaid, together with interest payable thereon to the repayment date. For this
Security to be repaid at the option of the Holder, the Trustee must receive at
the Corporate Trust Office or the New York Location, on or before the [insert
month and day] or, if such [insert month and day] is not a day other than a day
on which banking institutions in the Borough of Manhattan, the City and State of
New York
13
are authorized or required by law or regulation to close (a "Business Day"), the
next succeeding Business Day, but not earlier than the [insert month and day]
prior to the [insert month and day] on which the repayment price will be paid
(i) this Security, with the form entitled "Option to Elect Repayment" below duly
completed, or (ii) a facsimile transmission or letter from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States of America
setting forth the name of the Holder of this Security, the principal amount of
the Security, the amount of such Security to be repaid, a statement that the
option to elect repayment is being made thereby and a guarantee that the
Security to be repaid with the form entitled "Option to Elect Repayment" on the
reverse thereof duly completed will be received by the Issuer no later than five
Business Days after the date of such facsimile transmission or letter, and such
Security and form duly completed are received by the Issuer by such fifth
Business Day. Either form of notice duly received on or before the [insert month
and day] preceding any such [insert month and day] shall be irrevocable. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Securities of this series for repayment will be determined by
the Issuer, whose determination shall be final and binding.]
The Indenture permits, with certain exceptions as therein provided,
the amendment or supplementing thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Issuer and the
Trustee with the consent of the Holders of not less than a majority in aggregate
principal amount (calculated as provided in the Indenture) of the Securities at
the time Outstanding of all series to be affected (all such series voting as a
single class). The Indenture also contains provisions permitting the Holders of
not less than a majority in aggregate principal amount (calculated as provided
in the Indenture) of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive certain past
defaults or Events of Default under the Indenture and the consequences of any
such defaults or Events of Default. Any such consent or waiver by the Holder of
this Security (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest, if any, on
this Security at the times, place and rate, if any, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
register, upon due presentment of this Security for registration of transfer at
the office or agency of the Issuer in any place where the principal of and
interest, if any, on this Security are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
having the same interest rate and maturity and bearing interest
14
from the same date as this Security, of any authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of ________ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination
having the same interest rate and maturity and bearing interest from the same
date as such Securities, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue and notwithstanding
any notation of ownership or other writing thereon, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary. All
payments made to or upon the order of such registered Holder, shall, to the
extent of the sum or sums paid, effectually satisfy and discharge liability for
monies payable on this Security.
No recourse for the payment of the principal of or interest, if any,
on this Security, or for any claim based hereon or otherwise in respect hereof,
and no recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or any indenture supplemental thereto or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, official or director, as
such, past, present or future, of the Issuer or of any successor entity, either
directly or through the Issuer, as the case may be, or any successor entity,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
All terms used in this Security and not otherwise defined herein which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
This Security shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the conflicts of laws
principles thereof.
SECTION 2.4. [Intentionally Omitted].
SECTION 2.5. Form of Trustee's Certificate 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.
15
Dated: CITIBANK, N.A.,
as Trustee
By
----------------------
Authorized Signatory
SECTION 2.6. 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, each of which may
consist of one or more Tranches. The Securities shall be subordinate and junior
in right of payment to Issuer Senior Indebtedness as provided in Article Eleven.
The Securities of any Series will rank pari passu without any preference among
themselves and with all other present and future unsecured and equally
subordinated obligations of the Issuer. There shall be established in or
pursuant to a Resolution, a copy of which, certified by the secretary or an
assistant secretary of the Issuer, shall be delivered to the Trustee, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of a particular series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.12, 2.13 or 10.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates (including the
Overdue Rate) shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or dates may be
determined, 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;
(5) the place or places where the principal and any interest on
Securities of the series shall be payable;
(6) 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;
(7) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a
16
Holder thereof and the price or prices at which, 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;
(8) 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
repaid, in whole or in part, at the option of the Holder thereof;
(9) if other than Dollars, the coin or currency (including composite
currencies or currency units) in which the Securities of the series shall
be denominated and, if different, the coin or currency (including composite
currencies or currency units) in which payment of the principal of and/or
interest on the Securities of the series shall be payable, and if such coin
or currency (including composite currencies or currency units) is replaced
by the euro, the provisions to effect such replacement;
(10) if the principal of and/or interest on the Securities of the
series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency (including composite currencies or currency
units) other than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and conditions upon
which, such election may be made;
(11) if the amount of payments of principal of and/or interest on the
Securities of the series may be determined with reference to an index based
on a coin or currency (including composite currencies or currency units)
other than that in which the Securities are stated to be payable or with
reference to any other index, the manner in which such amounts shall be
determined;
(12) if other than denominations of U.S.$1,000 (or if the Securities
are denominated in a currency other than Dollars or in a composite
currency, 1,000 units of such other currency or composite currency or other
currency units) and any multiple thereof, the denominations in which
Securities of the series shall be issuable;
(13) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.1
or provable in bankruptcy pursuant to Section 4.2;
(14) if the Securities of the series are Original Issue Discount
Securities, the price at which and the date on which Securities of the
series are to be issued and the Yield to Maturity at the time of issuance
of such series;
(15) if the Securities of the series are convertible into Common
Stock, the Conversion Price therefor, the period during which such
Securities are convertible and any terms and conditions for the conversion
of such Securities which differ from Article Twelve; and
(16) any other terms of the series which are not inconsistent with
this Indenture.
17
In the case of Securities of a series issued in Tranches, all
Securities of any one Tranche shall be substantially identical, except as to
denomination. Except as provided in the preceding sentence, all Securities of
any one series shall be substantially identical except as to denomination,
interest rate and maturity and except as may otherwise be provided in or
pursuant to such Resolution or in any such indenture supplemental hereto. The
applicable Resolution or the applicable supplemental indenture may provide that
Securities of any particular series may be issued at various times, with
different maturities and redemption and repayment provisions (if any) and
bearing interest at different rates, but shall for all purposes under this
Indenture, including, but not limited to, voting and Events of Default, be
treated as Securities of a single series.
Except as otherwise specified pursuant to this Section 2.6 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.7. 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 make
available for delivery such Securities to or upon the written order of the
Issuer, signed by both (a) its chairman, its president, its executive vice
president or any senior vice president and (b) its treasurer, its controller,
its secretary, 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 the requirements of the Trust Indenture Act of 1939) shall be fully
protected in relying upon:
(1) a copy of any Resolution or Resolutions relating to such series,
certified by the secretary or an assistant secretary of the Issuer;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate of the Issuer setting forth the form and
terms of the Securities as required pursuant to Sections 2.1 and 2.6,
respectively, and prepared in accordance with the requirements of the Trust
Indenture Act of 1939 and Section 14.5; and
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act of 1939 and Section 14.5, which
shall state that (i) if the form of such Securities has been established by
or pursuant to a Resolution of the Issuer as permitted by Section 2.1, that
such form or forms, as the case may be, have been established in conformity
with the provisions of this Indenture, and that the terms of such
Securities have been established by or pursuant to a Resolution of the
Issuer as permitted by Section 2.6 in conformity with the provisions of
this Indenture and that the authentication and delivery of such Securities
by the Trustee is authorized under the provisions of this Indenture and
(ii) that 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 legally
binding obligations of the Issuer, enforceable in accordance with their
terms, except as the enforceability thereof
18
may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and
to general principles of equity regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law.
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 and/or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would adversely affect the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency other than that of the United States of
America if the Trustee reasonably determines that such Securities impose duties
or obligations on the Trustee which the Trustee is not able or reasonably
willing to accept; provided that the Trustee, upon the request of the Issuer,
will resign as Trustee with respect to Securities of any series as to which such
a determination is made, prior to the issuance of such Securities, and will
comply with the request of the Issuer to execute and deliver a supplemental
indenture appointing a successor Trustee pursuant to Section 7.1.
If the Issuer shall establish pursuant to Section 2.6 that the
Securities of a series or a Tranche are to be issued in the form of one or more
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the order of the Issuer with respect to such
series, authenticate and deliver one or more Global Securities, that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such series or such Tranche, as the case may
be, issued and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear such legend, if
any, as shall be required by the Depositary.
Each Depositary of a Global Security designated pursuant to Section
2.6 must, at the time of its designation and at all times while it serves as
Depositary hereunder, be a clearing agency registered under the Exchange Act and
any other applicable statute or regulation.
SECTION 2.8. Execution of Securities. The Securities shall be signed
on behalf of the Issuer by the chairman of its Board of Directors, its
president, the executive vice president, any senior vice president or its
treasurer, under its corporate seal which shall be attested by the secretary or
any assistant secretary of the Issuer. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. The seal of the
Issuer may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
19
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.
SECTION 2.9. Certificate of Authentication. Unless a certificate of
authentication, substantially in the form hereinbefore recited, set forth on a
Security has been executed by the Trustee by the manual signature of one of its
authorized signatories, such Security shall not be entitled to the benefits of
this Indenture and such Security shall not 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 2.10. [Intentionally Omitted].
SECTION 2.11. Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as registered
securities without coupons and in denominations as shall be specified as
contemplated by Section 2.6. 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 U.S.$1,000 (or, if such Securities are denominated
in a currency other than U.S. dollars or in a composite currency, 1,000 units of
such other currency or composite currency) and any multiple thereof. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the officers of the 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 2.6.
Except as otherwise specified for a particular series pursuant to
Section 2.6, the Person in whose name any Security of any series is registered
at the close of business on any record date (as hereinafter defined) 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 the cancellation of such Security upon any
registration of 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 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 of such series are
registered at the close of business on a subsequent record date (which shall be
not less than five days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Securities not less than 15 days preceding such subsequent record date.
20
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 2.12. Registration, Transfer and Exchange. The Issuer will
keep, either at the office or agency designated and maintained by the Issuer for
such purpose in the Borough of Manhattan, The City of New York, in accordance
with the provisions of Section 3.2, or at any of such other offices or agencies
as may be designated and maintained in accordance with the provisions of Section
3.2, 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 of a series 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 and any
Security registrar (as defined below) other than 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 3.2, the Issuer shall execute and the Trustee shall
authenticate and make available for delivery 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 and having the same interest
rate, maturity and repayment and redemption provisions.
Any Security or Securities of any series (other than a Global
Security, except as set forth below) may be exchanged for a Security or
Securities of the same series in other authorized denominations, in an equal
aggregate principal amount and having the same interest rate, maturity,
redemption and repayment provisions. 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 3.2, and the Issuer shall execute and the
Trustee shall authenticate and make available for delivery in exchange therefor
the Security or Securities of the same series and having the same interest rate,
maturity and repayment and redemption provisions which the Securityholder making
the exchange shall be entitled to receive, bearing numbers or other
distinguishing symbols not contemporaneously outstanding. Each Person designated
by the Issuer pursuant to the provisions of Section 3.2 as a Person authorized
to register and register transfer of the Security is sometimes herein referred
to as a "Security registrar".
The Issuer will at all times designate one Person (who may be the
Issuer and who need not be a Security registrar) to act as repository of a
master list of names and addresses of the Holders of the Securities (the
"Register"). The Trustee shall act as such repository unless and until some
other Person is, by written notice from the Issuer to the Trustee and each
Security registrar, designated by the Issuer to act as such. The Issuer shall
cause each Security registrar to furnish to such repository, on a current basis,
such information as to all registrations of transfer and exchanges effected by
such registrar, as may be necessary to enable such repository to maintain the
Register on as current a basis as is practicable.
21
No Person shall at any time be designated as or act as a Security
registrar unless such Person is at such time empowered under applicable law to
act as such and duly registered to act as such under and to the extent required
by applicable law and regulations.
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 or exchange in form satisfactory to the Issuer and the Trustee duly
executed by, the Securityholder 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, other than exchanges pursuant to Section
2.15, 7.5 or 10.3 not involving any registration of transfer. 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
selection of Securities of that series to be redeemed, or (b) any Securities
selected, called or being called for redemption or surrendered for repayment in
whole or in part except, in the case of any Security to be redeemed or repaid in
part, the portion thereof not so to be redeemed or repaid.
Notwithstanding any other provision of this Section 2.12, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depository to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.7, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not appointed
by the Issuer within 90 days after the Issuer receives such notice or becomes
aware of such ineligibility, the Issuer's election pursuant to Section 2.6 that
such Securities be represented by one or more Global Securities shall no longer
be effective and the Issuer will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and make available for delivery
definitive Securities of the same series, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities, in exchange for such Global Security
or Securities.
The Issuer may at any time, and in its sole discretion, determine that
Securities issued in the form of one or more Global Securities shall no longer
be represented by a Global Security or Securities. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities, will authenticate
22
and make available for delivery definitive Securities of the same series, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities, in exchange
for such Global Security or Securities.
If specified by the Issuer pursuant to Section 2.6 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
definitive Securities of the same series on such terms as are acceptable to the
Issuer and such Depositary. Thereupon, the Issuer shall execute and the Trustee
shall authenticate and make available for delivery, without service charge:
(i) to the Person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as requested
by such person, in an aggregate principal amount equal to and in exchange
for such person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for definitive Securities, in
authorized denominations, such Global Security shall be cancelled by the Trustee
or an agent of the Issuer or the Trustee. Definitive Securities issued in
exchange for a Global Security pursuant to this Section 2.12 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Issuer
or the Trustee. The Trustee or such agent shall make such Securities available
for delivery to or as directed by the Persons in whose names such Securities are
so registered.
SECTION 2.13. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become mutilated,
defaced or be destroyed, lost or stolen and, in the absence of notice to the
Issuer or the Trustee that any destroyed, lost or stolen Security has been
acquired by a bona fide purchaser, the Issuer may in its discretion execute and
the Trustee shall authenticate and make available for delivery, a new Security
of the same series and of like tenor, bearing a number or other distinguishing
symbol 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 and the Trustee (and any agent of the
Issuer or the Trustee, if requested by the Issuer) 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.
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
23
thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
In case any Security that 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 in its discretion 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 and the Trustee (and any agent of
the Issuer or the Trustee, if requested by the Issuer) such security or
indemnity as any of them may require 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.
Every substituted 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 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 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 2.14. Cancellation of Securities Paid, etc. All Securities
surrendered for the purpose of payment, redemption, registration of transfer,
conversion or exchange, or for credit against any payment in respect of a
sinking or analogous fund, if surrendered to the Issuer, any Security registrar,
any paying agent, any conversion agent, or any other agent of the Issuer or any
agent of the Trustee, shall be delivered to the Trustee and promptly canceled by
it or, if surrendered to the Trustee, shall be promptly canceled 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 destroy such canceled
Securities and deliver a certificate with respect to such destruction 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 2.15. Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute, and the Trustee
shall authenticate and make available for delivery temporary Securities for such
series (printed, lithographed, typewritten or otherwise reproduced). Temporary
Securities of any series shall be issuable as registered Securities without
coupons, in any authorized denomination, and substantially in the form of the
definitive Securities of such series in lieu of which they are issued but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer. Temporary Securities may
contain such reference to any provisions of this
24
Indenture as may be appropriate. Every temporary Security shall be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with like effect, as the definitive Securities in lieu of which they are
issued. Without unreasonable delay the Issuer shall execute definitive
Securities of such series and the Issuer shall furnish such definitive
securities 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 3.2, and the Trustee shall
authenticate and make available for delivery in exchange for such temporary
Securities of such series a like aggregate principal amount of definitive
Securities of the same series of authorized denominations having the same
interest rate, maturity and redemption and repayment provisions, and bearing
interest from the same date as such temporary Securities. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of the same series authenticated
and delivered hereunder.
SECTION 2.16. CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to
Securityholders; 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 of any change in the
"CUSIP" numbers.
SECTION 2.17. Form of Election to Convert. The notice of conversion to
be delivered by a Holder to the conversion agent in connection with the
conversion of Securities of any series that are convertible into shares of
Common Stock shall be in substantially the following form, with such appropriate
insertions, omissions, substitutions and other variations as are deemed
necessary or appropriate by the Issuer or the Trustee:
Notice of Conversion
The undersigned Holder of the Securities specified below hereby
irrevocably exercises the option to convert such Securities, or the aggregate
principal amount thereof specified below, into shares of Common Stock of the
Issuer, in accordance with the terms of the Securities and the Indenture dated
as of _________________, (the "Indenture") between Newmont Mining Corporation
and Citibank, N.A. as Trustee, and directs that if such Holder is electing to
receive Common Stock, the Common Stock issuable and deliverable upon conversion
be delivered to such Holder unless otherwise indicated below and any check in
payment for fractional shares be issued in the name of and delivered to the
undersigned unless a different name has been indicated below. All capitalized
terms used herein and not defined herein shall have the meanings specified in
the Indenture.
Dated:
---------------------------
Signature (for Conversion only)
25
Title of Securities:
Certificate Number(s)
(if applicable):
Aggregate Principal Amount
Represented:(1)
Principal Amount to be
Converted:(2)
If check for fractional Shares to be issued otherwise than to Holder:
--------------------------
Print name and address
Please print name and address
of Holder
--------------------------
--------------------------
Signature Guarantee: __________________________
--------------------------
----------
1 Unless otherwise specified, a Holder will be deemed to be converting the
entire principal amount of the Securities delivered.
2 Certificate registered in the name of the Holder will be issued in the
principal amount of the Securities not converted, unless otherwise
provided.
26
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1. 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, if any, on
each of the Securities of such series at the place or places, at the respective
times and in the manner provided in such Securities and in a manner consistent
with the applicable requirements of The Depository Trust Company. Except as
otherwise provided pursuant to Section 2.6 for Securities of any series, each
installment of interest on the Securities of any series may be paid by mailing
checks for such interest payable to the Person entitled thereto as such
addresses shall appear in the Register.
SECTION 3.2. Offices for Payments, etc. So long as any of the
Securities remain outstanding, the Issuer will designate and maintain in the
Borough of Manhattan, The City of New York, for each series: (a) an office or
agency where the Securities may be presented for payment or conversion, (b) an
office or agency where the Securities may be presented for registration of
transfer and for exchange as in this Indenture provided and (c) an office or
agency where notices and demands to or upon the Issuer in respect of the
Securities or of this Indenture may be served. In addition to such office or
offices or agency or agencies, the Issuer may from time to time designate and
maintain one or more additional offices or agencies within or outside the
Borough of Manhattan, The City of New York, where the Securities of that series
may be presented for payment or for registration of transfer or for exchange,
and the Issuer may from time to time rescind such designation, as it may deem
desirable or expedient. 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.
The Issuer hereby designates the New York Location and the Corporate Trust
Office as the initial offices to be maintained by it for such purposes. In case
the Issuer shall fail to 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 and the Issuer appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
SECTION 3.3. Paying Agents. Whenever the Issuer shall appoint a paying
agent or agents other than the Trustee with respect to the Securities of any
series, it will cause each such paying agent to execute and deliver to the
Trustee an instrument in which each such paying agent shall agree with the
Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest, if any, on the Securities of such
series (whether such sums have been paid to it by the Issuer or by any
other obligor on the Securities of such series) in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided,
(b) that it will give the Trustee notice of any default by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or
27
interest, if any, on the Securities of such series when the same shall
be due and payable, and
(c) that, at any time during the continuance of any such default
referred to in clause (b) above, upon the written request of the Trustee,
it will forthwith pay to the Trustee all sums so held in trust by such
paying agent.
Whenever the Issuer shall have one or more paying agents with respect
to Securities of any series, it will, prior to each due date of the principal of
or interest, if any, on the Securities of such series, deposit with a designated
paying agent a sum sufficient to pay such principal or interest, if any, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal or interest, if any, 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, if any, on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Persons entitled to such principal and
interest, if any, a sum sufficient to pay such principal or interest, if any, so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided. 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 Sections 9.3 and 9.4.
SECTION 3.4. Notice of Default. The Issuer shall file with the Trustee
written notice of the occurrence of any default or Event of Default within five
Business Days of the chairman of the Board of Directors, the president, the
executive vice president, any senior vice president, the general counsel, the
treasurer or the secretary of the Issuer becoming aware of any such default or
Event of Default.
SECTION 3.5. Calculation of Original Issue Discount. The Issuer shall
file with the Trustee promptly at the end of each calendar year a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Securities as of the end of such year.
SECTION 3.6. Reports. The Issuer shall comply with the provisions of
ss. 314(a) of the Trust Indenture Act of 1939 and shall file with the Trustee
within 45 days after it files them with the Commission and in any event no later
than 60 days after the end of the respective fiscal quarter, copies of its
annual report and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may by rules and
regulations
28
prescribe) which the Issuer is required to file with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended.
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
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 3.7. Compliance Certificates. (a) On or before April 15 in
each year (commencing with the first April 15 which is not less than 60 days
following the first date of issuance of Securities of any series under this
Indenture), the Issuer will file with the Trustee a brief certificate, signed by
its principal executive officer, principal financial officer, or principal
accounting officer, stating whether or not the signer has knowledge of any
default by the Issuer, in the performance or fulfillment of any covenant,
agreement, or condition contained in this Indenture, and, if so, specifying each
such default of which the signer has knowledge, the nature thereof, and what
action, if any, has been taken and is proposed to be taken to cure such default.
For purposes of this paragraph, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this
Indenture.
(b) The Issuer also shall comply with the other provisions ofss.314(a)
of the Trust Indenture Act of 1939.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.1. Events of Default. "Event of Default" with respect to
Securities of a particular series wherever used herein, means any one of the
following events and such other events as may be established with respect to the
Securities of such series as contemplated by Section 2.6, continued for the
period of time, if any, and after the giving of notice, if any, designated in
this Indenture or as may be established with respect to such Securities as
contemplated by Section 2.6, as the case may be, unless such event is either
inapplicable or is specifically deleted or modified in, or pursuant to, the
applicable Resolution or in the supplemental indenture under which such series
of Securities is issued, as the case may be, as contemplated by Section 2.6:
(a) default in the payment of any installment of interest, if any,
upon any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30 days;
or
(b) default in the payment of the principal of any of the Securities
of such series as and when the same shall become due and payable either at
maturity, upon redemption, by declaration or otherwise; or
29
(c) default in the payment of any sinking fund installment as and when
the same shall become due and payable by the terms of the Securities of
such series; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in respect
of the Securities of such series contained in this Indenture (other than a
covenant or agreement in respect of the Securities of such series a default
in the performance of which or a breach of which is elsewhere in this
Section specifically addressed), and continuance of such default or breach
for a period of 90 days after there has been given, by registered or
certified mail, to the Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of such series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under
any applicable Federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Issuer or
for all or substantially all of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 90 consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
Federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian, trustee
or sequestrator (or similar official) of the Issuer or for all or
substantially all of its property, or make any general assignment for the
benefit of creditors.
If an Event of Default with respect to any series of Securities at the
time Outstanding occurs and is continuing, then, and in each and every such
case, unless the principal of all of the Securities of such series shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of such
series, by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the Securities
of such series are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms of such series or if so provided
pursuant to Section 2.6 for Securities of any series, such other amount as is
specified pursuant thereto) of all of the Securities of such 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;
provided, however, that the payment of the principal of and premium, if any, and
interest, if any, on the Securities of such series shall remain subordinated to
the extent provided in Article Eleven hereof.
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 or if so provided pursuant to Section 2.6 for
30
Securities of any series, such other amount as is specified pursuant thereto) of
the Securities of any series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided,
(a) the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all
the Securities of such series and the principal of any and all Securities
of such series which shall have become due otherwise than by such
declaration of 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, if any, at the Overdue Rate applicable
to such series to the date of such payment or deposit), and all amounts
payable to the Trustee pursuant to Section 5.5, and
(b) any and all Events of Default under the Indenture with respect to
such series of Securities other than the non-payment of the principal of
such Securities which shall have become due by such declaration of
acceleration, shall have been cured, waived or otherwise remedied as
provided herein or provision shall have been made therefor to the
satisfaction of the Trustee,
then and in every such case the Holders of not less than a majority in aggregate
principal amount of the Securities of such series then Outstanding, by written
notice to the Issuer and to the Trustee, may rescind and annul such declaration
and its consequences with respect to such series, but no such 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. If the Securities of any series provide the amount other
than the face amount thereof will be payable upon the maturity thereof or a
declaration of acceleration of the maturity thereof, for purposes of this
Section 4.1 the principal amount of such Securities shall be deemed to be such
amount as shall be due and payable upon the acceleration of the maturity
thereof, except as may otherwise be provided with respect to such Securities
pursuant to Section 2.6.
If the Securities of any series provide that an amount other than the
face amount thereof will be payable upon the maturity thereof or upon a
declaration of acceleration of the maturity thereof, for purposes of this
Section 4.1 the principal amount of such Securities shall be deemed to be such
amount as shall be due and payable upon the acceleration of the maturity
thereof, except as may otherwise be provided with respect to such Securities
pursuant to Section 2.6.
31
SECTION 4.2. Payment of Securities on Default; Suit Therefor. The
Issuer covenants that (a) in case a default shall be made in the payment of any
installment of interest on any of the Securities of any series as and 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 a default shall be made in the
payment of the principal of any of the Securities of any series as and when the
same shall have become due and payable, whether upon maturity of the Securities
of such series or upon redemption or by declaration or otherwise, or (c) in case
of a default in the making or satisfaction of any sinking fund payment or
analogous obligation when the same becomes due by the terms of the Securities of
any series -- then, upon demand of the Trustee, the Issuer will pay to the
Trustee for the benefit of the Holders of the Securities of such series the
whole amount then due and payable on all Securities of such series for principal
and interest, if any, 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, if any, at the Overdue Rate applicable to Securities of such series);
and in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, and any further amounts payable to the Trustee
pursuant to Section 5.5.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest, if any, on the Securities of any series to the
registered Holders, whether or not the principal of and interest, if any, on the
Securities of such series be overdue.
In case the Issuer 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 other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Issuer or any other obligor upon the Securities of any
series under Title 11 of the United States Code or any other similar applicable
Federal or state law, or in case a receiver, trustee in bankruptcy or similar
official shall have been appointed for the property of the Issuer or such other
obligor, or in case of any other similar judicial proceedings relative to the
Issuer or other obligor upon the Securities of any series, or to the creditors
or property of the Issuer 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,
subject to the provisions of Article Eleven, 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 (or, if the Securities of any series are Original Issue Discount
Securities or if the Securities of any series provide that an amount other
than the face thereof will or may be payable upon maturity thereof or upon
a declaration of acceleration thereof, such amount as may be due and
payable with respect to such series pursuant to a declaration in accordance
with
32
Section 4.1) and interest, if any, owing and unpaid in respect of the
Securities of any series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim
for any amounts payable to the Trustee pursuant to Section 5.5) and of the
Securityholders allowed in any judicial proceedings relating to the Issuer
or other obligor upon the Securities of any series, or to the creditors or
property of the Issuer 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 of a 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 (after deduction of costs and expenses of collection, and any
further amounts payable to the Trustee pursuant to Section 5.5 and incurred
by it up to the date of distribution); and any trustee in bankruptcy,
receiver 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 costs and expenses of collection,
and any further amounts payable to the Trustee pursuant to Section 5.5 and
incurred by it up to the date of distribution.
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 of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding 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 the Securities of any series, may be enforced by the Trustee without the
possession of any of the Securities of such series 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, 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 in
which a declaratory judgment of a court may be sought as to the interpretation
or construction 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 to which such proceedings relate, and it shall not be necessary to
make any Holders of such Securities parties to any such proceedings.
SECTION 4.3. Application of Moneys Collected by Trustee. Subject to
the provisions of Article Eleven hereof, any moneys collected by the Trustee
pursuant to this Article
33
shall be applied in the following order at the date or dates fixed by the
Trustee and, in the case of distribution of such moneys on account of principal
or interest, upon presentation of the several Securities in respect of which
moneys have been collected and stamping (or otherwise noting) thereon the
payment, or issuing Securities in reduced principal amounts in exchange for the
presented Securities of like series (or, in the case of Securities of a series
issued in more than one Tranche, of the same Tranche) and tenor if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of amounts due to the Trustee pursuant to
Section 5.5;
SECOND: In case the principal of the Outstanding Securities in respect
of which moneys have been collected shall not have become and be then due
and payable, to the payment of interest, if any, on the Securities 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 and to the extent permitted by applicable law) upon the overdue
installments of interest at the Overdue Rate applicable to such Securities,
such payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Outstanding Securities in respect
of which moneys have been collected shall have become and shall be then due
and payable by declaration or otherwise, to the payment of the whole amount
then owing and unpaid upon such Securities for principal and interest, if
any, with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee and to the extent permitted by
applicable law) upon overdue installments of interest, if any, at the
Overdue Rate applicable to such Securities; and in case such moneys shall
be insufficient to pay in full the whole amount so due and unpaid upon such
Securities, then to the payment of such principal and interest, if any,
without preference or priority of principal over interest, if any, or of
interest, if any, over principal, or of any installment of interest, if
any, over any other installment of interest, if any, or of any Security
over any other Security, ratably to the aggregate of such principal and
accrued and unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the Issuer or its
successors and assigns.
SECTION 4.4. Proceedings by Trustee. In case an Event of Default
hereunder 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 4.5. Restoration of Rights on Abandonment of Proceedings. 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 the Trustee and the Securityholders shall be restored
respectively to their former positions and rights hereunder, and
34
all rights, remedies and powers of the Issuer, the Trustee and the
Securityholders shall continue as though no such proceedings had been taken.
SECTION 4.6. Proceedings by Securityholders. 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 in bankruptcy, receiver or other similar official
or for any other remedy hereunder, unless such Holder previously shall have
given to the Trustee written notice of default with respect to Securities of
such series and of the continuance thereof, as hereinbefore provided, and unless
also the Holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding shall have made written request upon
the Trustee to institute such action, suit 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 neglected or refused to
institute any such action, suit or proceeding and no direction inconsistent with
such written request shall have been given to the Trustee pursuant to Section
4.8 during such 60 day period; 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 any Securities
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holder of Securities, or to obtain or seek to obtain priority over or
preference to any other 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 4.7. Remedies Cumulative and Continuing. Except as provided in
Section 4.6, 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 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders of any or all
series, as the case may be, may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Securityholders of such
series or all series, as the case may be.
SECTION 4.8. Control by Securityholders. The Holders of not less than
a majority in aggregate principal amount of the Securities of each series
affected at the time Outstanding (with each such series voting separately as a
class) shall have the right to direct the
35
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 by this
Indenture with respect to Securities of such series. Notwithstanding any of the
foregoing, no such direction shall be otherwise than in accordance with law and
the provisions of this Indenture and (subject to the requirements of the Trust
Indenture Act of 1939) the Trustee shall have the right to decline to follow any
such direction if the Trustee, being advised by counsel, shall determine that
the action or proceeding so directed may not lawfully be taken or would be
unjustly prejudicial to the Holders of such Securities not taking part in such
direction, or the Holders of the Securities of any other series, 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.
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 4.9. Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Securities of any particular series the
Holders of not less than a majority in aggregate principal amount of the
Securities of such particular series at the time Outstanding may on behalf of
the Holders of all the Securities of such particular series waive any past
default or Event of Default with respect to such particular series 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
Outstanding Security affected as provided in Section 7.2. In the case of any
such waiver, the Issuer, the Trustee and the Holders of the Securities of each
series affected shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
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.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1. Reliance on Documents, Opinions, etc.; No Requirement for
Expenditure of Own Funds. Subject to the provisions of the Trust Indenture Act
of 1939:
(a) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, in the absence of bad faith on the part of
the Trustee, upon certificates or opinions conforming to the requirements
of this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to
the Trustee, the
36
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) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any Resolution may be evidenced to the Trustee by a copy thereof certified
by the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel of its selection and any
advice of such counsel 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
rights 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
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) 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, bond, direction, note 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 any 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
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; and the reasonable expenses of every such investigation shall
be paid by the Issuer or, if paid by the Trustee, shall be promptly repaid
by the Issuer upon demand;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys 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;
(g) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
37
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in the absence of negligence or bad faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; and
(i) the Trustee shall not be deemed to have notice of any default or
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.
None of the provisions contained in this Indenture shall be construed
as requiring 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. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
requirements of the Trust Indenture Act of 1939.
SECTION 5.2. No Responsibility for Recitals, etc. The recitals
contained herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer 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, provided that the Trustee shall not be relieved of its duty to
authenticate Securities only as authorized by this Indenture. 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 5.3. Trustee and Agents May Hold Securities. The Trustee or
any agent of the Issuer 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, subject to the requirements of the
Trust Indenture Act of 1939, may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
SECTION 5.4. Moneys to Be Held in Trust. Subject to the provisions of
Sections 9.3 and 9.4, all moneys received by the Trustee or any paying agent,
all money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 9.8 and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 9.8, 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
paying agent shall be under any liability for interest on any moneys received by
it hereunder, except such as it may agree in writing with the Issuer to pay
thereon. So long as no Event of Default shall have occurred and be continuing,
all interest allowed on any such moneys shall be paid from time to time upon the
written order of the Issuer signed by one of its officers, who is one of the
officers who may sign an Officers' Certificate.
38
SECTION 5.5. Compensation and Expenses of Trustee. The Issuer
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed to from time to time
in writing by the Issuer and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and, except as otherwise expressly provided, the Issuer will pay or reimburse
the 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 persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Issuer also covenants to indemnify the Trustee
for, and to hold it harmless against, any and all loss, liability, damage, claim
or expense, including taxes (other than taxes based on the income of the
Trustee) incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including the costs and expenses of
defending itself against any claim (whether asserted by the Issuer, a Holder or
any other Person) or liability in the premises. The obligations of the Issuer
under this Section to compensate and indemnify the Trustee and to pay or
reimburse the 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 secured by a
lien prior to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 4.1(e) or Section 4.1(f), the
expenses (including the reasonable fees 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 5.6. Right of Trustee to Rely on Officers' Certificate, etc.
Subject to the requirements of the Trust Indenture Act of 1939, 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 to be taken 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 5.7. Eligibility of Trustee. The Trustee for each series of
Securities hereunder shall at all times be a corporation which complies with the
requirements of the Trust Indenture Act of 1939, having a combined capital and
surplus of at least U.S.$50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation at any time shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In
39
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 5.8.
SECTION 5.8. Resignation or Removal of Trustee; 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. 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 of Directors, 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 may,
at the expense of the Issuer, 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 requirements of the Trust Indenture Act of
1939, 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 cease to be eligible in accordance with the
provisions of Section 5.7 with respect to any series of Securities and
shall fail to resign after written request therefor by the Issuer or by any
Securityholder; or
(ii) 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 by Resolution may remove the Trustee with
respect to the applicable series of Securities (or all series, if required) and
appoint a successor trustee for such series by written instrument, in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the successor
trustee, or, subject to the requirements 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 with
respect to such series.
(c) The Holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to
40
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 6.1 of the action in that regard taken by the Securityholders.
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 removal, the Trustee being removed may, at the expense of the
Issuer, petition any court of competent jurisdiction for the appointment of a
successor trustee.
(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 5.8 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.9.
SECTION 5.9. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.8 shall execute,
acknowledge and deliver to the Issuer and 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 the successor trustee, upon payment (or due
provision therefor) of any amounts then due it pursuant to Section 5.5, the
predecessor Trustee ceasing to act shall, subject to Section 9.4, 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 lien
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 5.5.
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 duties 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 hereunder separate and
apart from any trust or trusts hereunder administered by any other such trustee.
41
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 5.9 unless at the time of such
acceptance such successor trustee shall, with respect to such series, be
qualified under the provisions of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 5.7.
Upon acceptance of appointment by any successor trustee as provided in
this Section 5.9, the Issuer shall mail notice thereof 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 Register. 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 Issuer's expense.
SECTION 5.10. 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 the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided, that such corporation shall be qualified under the provisions of the
Trust Indenture Act of 1939 and eligible under the provisions of Section 5.7,
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 by
merger, conversion or consolidation 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 such successor to the Trustee or, if such successor to the
Trustee is a successor by merger, conversion or consolidation, in the name of
any predecessor hereunder; and in all such cases such certificate shall have the
full force which the certificate of the Trustee shall have as provided anywhere
in the Securities of such series or in this Indenture.
SECTION 5.11. Reports by Trustee to Securityholders. Within 60 days
after December 31 in each year, beginning with the December 31 following the
date of this Indenture, the Trustee shall mail to the Securityholders a brief
report dated as of such reporting date in compliance with ss. 313(a) of the
Trust Indenture Act of 1939 if such report is required by Section ss. 313(a).
The Trustee also shall comply with ss. 313(b) of the Trust Indenture Act of
1939. The Trustee shall also transmit by mail all reports as required by ss.
313(c) of the Trust Indenture Act of 1939. The Issuer shall promptly notify the
Trustee when the Securities are listed on any stock exchange and of any
delisting thereof.
42
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1. Action by Securityholders. Whenever in this Indenture it
is provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action) the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Securityholders in person or by agent or proxy appointed in
writing, or (b) by the record of such Holders of Securities voting in favor
thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of this Article, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments and/or such record
are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent or proxy shall be sufficient for any purpose
of this Indenture and (subject to the requirements of the Trust Indenture Act of
1939 and Section 5.1) conclusive in favor of the Trustee and the Issuer, if made
in the manner provided in this Article.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have taken any action (including
the making of any demand or request), the giving of any notice, consent or
waiver (or the taking of any other action) hereunder and in determining voting
rights of any Holder of a Security hereunder (i) the principal amount of
Original Issue Discount Securities 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 4.1, (ii) in the case of Securities
which provide that an amount other than the face amount thereof will or may be
payable upon the maturity thereof or upon a declaration of acceleration of the
maturity thereof, the principal amount of such Securities that shall be deemed
to be Outstanding for such purposes shall be the amount that would be due and
payable in respect of such Securities as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 4.1,
and (iii) the principal amount of any Security, the principal amount of which is
denominated in a currency other than U.S. dollars or in units of currencies or
in a composite currency (the "Specified Currency") shall be deemed to be that
amount of U.S. dollars which could have been obtained by the face amount of such
Specified Currency at the Market Exchange Rate. For purposes of this Section
6.1, "Market Exchange Rate" means, unless otherwise specified for a Specified
Currency with respect to any series of Securities pursuant to Section 2.6, the
noon U.S. dollar buying rate in New York City for cable transfers of the
Specified Currency published by the Federal Reserve Bank of New York;
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 Securityholders.
43
If the Issuer shall solicit from the Securityholders any demand,
request, notice, consent, waiver or the taking of any other action (other than
in accordance with the Securityholders voting provisions set forth in Sections
6.6 through 6.14 of this Article), the Issuer may, at its option, by a
Resolution, fix in advance a record date for the determination of Holders
entitled to give such demand, request, notice, consent or waiver or to take such
other action, but the Issuer shall have no obligation to do so. If such a record
date is fixed, such demand, request, notice, consent, waiver or such other
action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite percentage of Securities Outstanding have authorized or agreed or
consented to such demand, request, notice, consent, waiver or taking of any
other action, and for that purpose the Securities Outstanding shall be computed
as of the record date; provided, that no such demand, request, notice, consent,
waiver or taking of any other action by the Holders on the record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
SECTION 6.2. Proof of Execution by Securityholders. Subject to the
requirements of the Trust Indenture Act of 1939 and Sections 5.1 and 6.11, proof
of the execution of any instrument by a Securityholder or his agent or proxy
shall be sufficient if made 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 ownership of Securities shall be proved by the
Register or by a certificate of the Person designated by the Issuer to keep the
Register and to act as repository in accordance with the provisions of Section
2.12.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 6.12.
SECTION 6.3. Holders to Be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the Person in
whose name any Security shall be registered in the 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, if any, on such Security
and for all other purposes; and none of the Issuer, the Trustee or any agent of
the Issuer 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 6.4. 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 demand,
request, notice, 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,
44
except that for the purpose of determining whether the Trustee shall be
protected in relying on any such demand, request, notice, 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 for purposes of this
Section 6.4 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 the requirements of the Trust Indenture
Act of 1939 and Section 5.1, the Trustee shall, in the absence of manifest
error, 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 6.5. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 6.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number or other distinguishing symbol of which is shown by the evidence
to be included among the serial numbers or other distinguishing symbols 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 binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
SECTION 6.6. Securityholders' Meetings; Purposes. A meeting of Holders
of Securities of any series or all series, as the case may be, may be called at
any time and from time to time pursuant to the provisions of this Article Six
for any of the following purposes:
(1) to give any notice to the Issuer or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any default or
Event of Default hereunder and its consequences, or to take any other
action authorized to be taken by Securityholders pursuant to any of the
provisions of Article Four;
(2) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article Five;
45
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 7.2; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Securities
of any series or all series, as the case may be, under any other provision
of this Indenture or under applicable law.
SECTION 6.7. Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Holders of Securities of any series or all series, as the case
may be, to take any action specified in Section 6.6, to be held at such time and
at such place in the Borough of Manhattan, The City of New York, as the Trustee
shall determine. Notice of every meeting of the Holders of Securities of any
series or all series, as the case may be, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed to Holders of Outstanding Securities of each series
affected at their addresses as they shall appear in the Register as of a date
not more than 15 days prior to the mailing of such notice. Such notice shall be
mailed not less than 20 nor more than 90 days prior to the date fixed for the
meeting.
Any meeting of the Holders of Securities of any series or all series,
as the case may be, shall be valid without notice if the Holders of all
Securities of any series then Outstanding are present in person or by proxy, or,
if notice is waived before or after the meeting by the Holders of all Securities
of any series outstanding, and if the Issuer and the Trustee are either present
by duly authorized representatives or have, before or after the meeting waived
notice.
SECTION 6.8. Call of Meetings by Issuer or Securityholders. In case at
any time the Issuer pursuant to a Resolution, or the Holders of at least 10% in
aggregate principal amount of the Securities then Outstanding of any or all
series, as the case may be, shall have requested the Trustee to call a meeting
of the Holders of Securities of such series or all series, as the case may be,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within 20 days after receipt of such request, then the Issuer or such
Securityholders, in the amount specified above, may determine the time and the
place in said Borough of Manhattan for such meeting and may call such meeting to
take any action authorized in Section 6.6, by mailing notice thereof as provided
in Section 6.7.
SECTION 6.9. Qualifications for Voting. To be entitled to vote at any
meeting of Securityholders a Person shall (a) be a Holder of one or more
Securities with respect to which such meeting is being held or (b) be a Person
appointed by an instrument in writing as proxy by a Holder of one or more such
Securities. The only Persons who shall be entitled to be present or to speak at
any meeting of Securityholders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Issuer and their respective counsel.
SECTION 6.10. Quorum; Adjourned Meetings. The Persons entitled to vote
a majority in aggregate principal amount of the Securities of the relevant
series at the time
46
Outstanding shall constitute a quorum for the transaction of all business
specified in Section 6.6. No business shall be transacted in the absence of a
quorum (determined as provided in this Section 6.10). In the absence of a quorum
within 30 minutes after the time appointed for any such meeting, the meeting
shall, if convened at the request of the Holders of Securities (as provided in
Section 6.8), be dissolved. In any other case the meeting shall be adjourned for
a period of not less than ten days as determined by the chairman of the meeting.
In the absence of a quorum at any such adjourned meeting, such adjourned meeting
shall be further adjourned for a period of not less than ten days as determined
by the chairman of the meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 6.7, except that such notice must
be mailed not less than five days prior to the date on which the meeting is
scheduled to be reconvened.
Any Holder of a Security who has executed in person or by proxy and
delivered to the Trustee an instrument in writing complying with the provisions
of Section 6.2 shall be deemed to be present for the purposes of determining a
quorum and be deemed to have voted; provided, that such Holder of a Security
shall be considered as present or voting only with respect to the matters
covered by such instrument in writing.
SECTION 6.11. Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall determine.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the Issuer
or by Securityholders as provided in Section 6.8, in which case the Issuer or
the Securityholders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by the vote of the Holders of a
majority of the principal amount of the Outstanding Securities present at the
meeting.
Subject to the provisions of Section 6.4, at any meeting each Holder
of Securities with respect to which such meeting is being held or proxy shall be
entitled to one vote for each U.S.$1,000 (or if any Securities are denominated
in a currency other than U.S. dollars or in units of currencies or in a
composite currency, the equivalent of U.S.$1,000 in the applicable currency,
units of currencies or composite currency calculated using the market Exchange
Rate) principal amount (or in the case of Original Issue Discount Securities or,
in the case of Securities which provide that an amount other than the face
amount thereof will or may be payable upon the maturity thereof or upon a
declaration of acceleration of the maturity thereof, such principal amount to be
determined as provided in the definition of "Outstanding" in Section 1.1) of
such Securities held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any such Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of such Securities held by him or instruments in writing as aforesaid
duly designating him as the Person to vote on behalf of other such
Securityholders. Any meeting
47
of Holders of Securities with respect to which a meeting was duly called
pursuant to the provisions of Section 6.7 or 6.8 may be adjourned from time to
time by the Holders of a majority of the principal amount of the Outstanding
Securities present, whether or not constituting a quorum, and the meeting may be
held as so adjourned without further notice.
SECTION 6.12. Voting. The vote upon any resolution submitted to any
meeting of Holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures of
such Holders of Securities or of their representatives by proxy and the
principal amount (in the case of Original Issue Discount Securities or, in the
case of Securities which provide that an amount other than the face amount
thereof will or may be payable upon the maturity thereof or upon a declaration
of acceleration of the maturity thereof, such principal amount to be determined
as provided in the definition of "Outstanding" in Section 1.1) and number or
numbers or other distinguishing symbol or symbols of such Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 6.7. The record shall show the
principal amount of the Securities (in the case of Original Issue Discount
Securities or, in the case of Securities which provide that an amount other than
the face amount thereof will or may be payable upon the maturity thereof or upon
a declaration of acceleration of the maturity thereof, such principal amount to
be determined as provided in the definition of "Outstanding" in Section 1.1)
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Issuer and the other
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 6.13. No Delay of Rights by Meeting. Nothing in this Article
Six shall be deemed or construed to authorize or permit, by reason of any call
of a meeting of Securityholders of any or all series or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Securityholders of any or all such series under any of the provisions of
this Indenture or of the Securities.
SECTION 6.14. Written Consent in Lieu of Meeting. The written
authorization or consent by the Holders of the requisite percentage in aggregate
principal amount of Outstanding Securities of one or more series herein
provided, entitled to vote at any such meeting, evidenced as provided in Section
6.1 and filed with the Trustee, shall be effective in lieu of a meeting of the
Holders of Securities of such series, with respect to any matter provided for in
this Article Six.
48
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1. Supplemental Indentures Without Consent of
Securityholders. The Issuer when authorized by, or pursuant to a Resolution, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of the execution thereof)
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 entity to the Issuer or
successive successions, and the assumption by the successor entity of the
covenants, agreements and obligations of the Issuer pursuant to Article
Eight;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the benefit of the Holders of one or more series of
Securities (and if such covenants, restrictions, conditions or provisions
are to be for the benefit of less than all series of Securities, stating
that such covenants, restrictions, conditions or provisions are expressly
being included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Issuer;
(d) to add additional Events of Default and to provide with respect
thereto for any particular periods of grace after default (which may be
shorter or longer than that allowed in the case of other defaults) or for
immediate enforcement upon such default or for any limitation of the
remedies available to the Trustee upon such default;
(e) to provide for the issuance under this Indenture of Securities in
bearer form (including Securities registrable as to principal only) with or
without interest coupons and to provide for exchangeability of such
Securities with the Securities of the same series or Tranche, as the case
may be, issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(f) to cure any ambiguity or to correct or supplement any provision
contained herein, in the Securities of any series or in any supplemental
indenture which may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture; or to change or
eliminate any provision or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Issuer may deem necessary or desirable and which shall not
adversely affect the interests of the Holders of the Securities at the time
Outstanding;
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.6;
49
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 5.9;
(i) to add to or change any provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities convertible into other securities; or
(j) to effectuate the provisions of Section 12.5(b).
Upon the request of the Issuer, accompanied by copies of Resolutions
authorizing the execution of any such supplemental indenture, certified by the
secretary or assistant secretary of the Issuer, the Trustee shall join with the
Issuer 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 (but may in its
discretion) enter into any such supplemental indenture which adversely 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 by the Issuer and the Trustee without the consent of the
Holders of any of the Securities at the time Outstanding, notwithstanding any of
the provisions of Section 7.2.
SECTION 7.2. Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Six) of the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected by such supplemental indenture (all such series voting as a
single class) at the time Outstanding, the Issuer when authorized by, or
pursuant to a Resolution, and the Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act of 1939 as in force at the
date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights and
obligations of the Issuer or the rights of the Holders of the Securities of all
such series; provided, that no such supplemental indenture shall (a) extend the
fixed maturity of any Security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
amount payable on redemption or reduce the Overdue Rate thereof or make the
principal thereof or interest thereon payable in any coin or currency other than
that provided in the Security or reduce the amount of the principal of an
Original Issue Discount Security (or a Security that provides that an amount
other than the face amount thereof will or may be payable upon a declaration of
acceleration of the maturity thereof) that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 4.1 or the amount
thereof provable in bankruptcy pursuant to Section 4.2, or impair, if the
Securities provide therefor, any right of repayment at the option of the
Securityholder, or impair the right of any holders of Securities of a series
entitled to the conversion rights set forth in Article Twelve to receive
securities upon the
50
exercise of such conversion rights, without the consent of the Holder of each
Security so affected, or (b) reduce the aforesaid percentage of Securities 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 or (c) modify
any of the provisions of Article Eleven in a manner adverse to the Holders of
the Securities.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Securityholders of such series with respect to such covenant
or provision, shall be deemed not to affect the rights under this Indenture of
the Securityholders of any other series. The preceding sentence shall not,
however, raise any inference as to whether or not a particular series is
affected by any supplemental indenture not referred to in such sentence.
Upon the request of the Issuer, accompanied by copies of Resolutions
authorizing the execution of any such supplemental indenture certified by the
secretary or assistant secretary of the Issuer, and upon the filing with the
Trustee of evidence of the consent of Securityholders as aforesaid and other
documents, if any, required by Section 6.1, the Trustee shall join with the
Issuer in the execution of such supplemental indenture unless such supplemental
indenture adversely 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 and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 7.2, the
Issuer shall mail a notice thereof to the Holders of Securities of each series
affected thereby at their addresses as they shall appear in the Register,
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Issuer 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 7.3. 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 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 7.4. Certain Documents to Be Given to Trustee. The Trustee,
subject to the requirements of the Trust Indenture Act of 1939 and Section 5.1,
may receive an Officers'
51
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Seven complies with the
requirements of this Article Seven.
SECTION 7.5. Notation on Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article Seven 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 at any such meeting. 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 Issuer, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Issuer, authenticated by the Trustee and
delivered in exchange for the Securities of such series then Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 8.1. Issuer May Consolidate, etc., on Certain Terms. Nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Issuer with or into any other entity or entities
(whether or not affiliated with the Issuer), or successive consolidations or
mergers in which the Issuer or its successor or successors shall be a party or
parties, or shall prevent any sale, conveyance or lease of all or substantially
all the property of the Issuer, to any other entity (whether or not affiliated
with the Issuer) authorized to acquire and operate the same; provided, however,
and the Issuer hereby covenants and agrees, that upon any such consolidation,
merger, sale, conveyance or lease, (i) the due and punctual payment of the
principal of and interest, if any, on all of 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 by the Issuer, shall
be expressly assumed, by supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee by the entity (if other than the
Issuer) formed by such consolidation, or into which the Issuer shall have been
merged, or by the entity which shall have acquired or leased such property and
(ii) the Issuer or such successor entity, as the case may be, shall not,
immediately after such merger or consolidation, or such sale, conveyance or
lease, be in default in the performance of any such covenant or condition.
SECTION 8.2. Successor Entity to Be Substituted. (a) In case of any
consolidation, merger, sale, conveyance or lease referred to in Section 8.l and
upon the assumption by the successor entity, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of in the
case of Section 8.1 the due and punctual payment of the principal of and
interest, if any, on all of the Securities and the due and punctual performance
of all of the covenants and conditions of this Indenture to be performed by the
Issuer such successor entity shall succeed to and be substituted for the Issuer
with the same effect as if it had been named herein as the party of the first
part. In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued.
52
(b) In the case of a successor entity to the Issuer, such successor
entity thereupon may cause to be signed, and may issue either in its own name or
in the name of Newmont Mining Corporation 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 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 entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All 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. In the event of any such sale or conveyance, but not any such lease, the
Issuer or any successor entity which shall theretofore have become such in the
manner described in this Article Eight shall be discharged from all obligations
and covenants under this Indenture and the Securities and may be dissolved and
liquidated.
SECTION 8.3. Opinion of Counsel and Officers' Certificate to Be Given
to Trustee. The Trustee, subject to the requirements of the Trust Indenture Act
of 1939 and Section 5.1, may receive an Opinion of Counsel and Officers'
Certificate as conclusive evidence that any such consolidation, merger, sale,
conveyance or lease and any such assumption complies with the provisions of this
Article Eight.
ARTICLE NINE
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 9.1. Satisfaction and Discharge of Indenture. If at any time
(a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any particular series Outstanding hereunder
(other than Securities which have been mutilated, defaced, destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.13 or in
lieu of or in substitution for which other Securities shall have been
authenticated and delivered) as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee for cancellation
all Securities of such series theretofore authenticated (other than any
Securities of such series which shall have been mutilated, defaced, destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section
2.13 or in lieu of or in substitution for which other Securities shall have been
authenticated and delivered) and not theretofore cancelled, or (c)(i) all the
Securities of such series not theretofore cancelled or delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (ii) the Issuer 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 9.4) sufficient to pay at maturity or upon redemption
all Securities of such series not theretofore delivered to the Trustee for
cancellation (other than any Securities of
53
such series which shall have been mutilated, defaced, destroyed, lost or stolen
which have been replaced or paid as provided in Section 2.13 or in lieu of or in
substitution for which other Securities shall have been authenticated and
delivered), including principal and interest, if any, due or to become due to
such date of maturity or the date fixed for redemption, as the case may be, and
if, in any such case, the Issuer shall also pay or cause to be paid all other
sums payable hereunder by the Issuer with respect to Securities of such series,
then this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) rights of registration of transfer
and exchange, and the Issuer's right of optional redemption, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
Securityholders to receive payments of principal thereof and interest, if any,
thereon, and remaining rights of the Securityholders to receive mandatory
sinking fund payments, if any, (iv) the rights, obligations and immunities of
the Trustee hereunder, including its rights under Section 5.5, (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 (vi)
any rights, if any, of Securityholders to convert such Securities), and the
Trustee, on demand of the Issuer accompanied by an Officers' Certificate 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.
SECTION 9.2. Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 9.4, all moneys deposited with the Trustee
pursuant to Section 9.1 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,
if any. All money deposited with the Trustee pursuant to Section 9.1 (and held
by it or any paying agent) for the payment of Securities subsequently converted
into Common Stock shall be returned to the Issuer upon its written request.
SECTION 9.3. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent, other than the Trustee,
under the provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to the Issuer, or paid to the
Trustee, and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 9.4. 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, if any, on any
Security of any series and not applied but remaining unclaimed for two years
after the date upon which such principal or interest, as the case may be, 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 such 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.
54
SECTION 9.5. Option to Effect Defeasance . The Issuer may at its
option by or pursuant to a Resolution, at any time, with respect to the
Securities of any series, elect to have Section 9.6 be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below.
SECTION 9.6. Defeasance and Discharge. Upon the Issuer's exercise of
its option to utilize the provisions of this Section 9.6 and upon compliance
with Section 9.7, the Issuer shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series, on the
date the conditions set forth below are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Issuer shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Securities of such series to receive, solely from the trust fund
described in Section 9.8 and as more fully set forth in such Section, payments
in respect of the principal of and interest on such Securities when such
payments are due, (B) the obligations of the Issuer with respect to such
Securities under Sections 2.12, 2.13, 2.15, 3.2 and 3.3, (C) the rights, powers,
trusts, duties, and immunities of the Trustee under Sections 2.13, 2.14, 2.15,
4.3, 5.5 and 9.4, and otherwise the duty of the Trustee to authenticate
Securities of such series issued on registration of transfer or exchange, (D)
the conversion rights, if any, of Holders of Outstanding Securities of such
series and the Issuer's obligations, if any, with respect thereto under Article
Twelve, and (E) this Article Nine.
SECTION 9.7. Conditions to Defeasance. The following shall be the
conditions to application of Section 9.6 to the Outstanding Securities of such
series:
(a) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 5.7 who shall agree to comply with the provisions of this
Article Nine applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of and each installment of principal of and interest on the
Outstanding Securities of such series on the stated maturity of such
principal or installment of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to the Outstanding
Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of America
for the payment of which its
55
full faith and credit is pledged or (y) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with respect
to any such U.S. Government Obligation or a specific payment of principal
of or interest on any such U.S. Government Obligation held by such
custodian for the account of the Holder of such depository receipt,
provided, that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the Holder of such
depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such depository
receipt.
(b) 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 of
such series shall have occurred and be continuing on the date of such
deposit.
(c) Such defeasance shall not cause the Trustee for the Securities of
such series to have a conflicting interest for purposes of the Trust
Indenture Act of 1939 with respect to any Securities of the Issuer.
(d) Such 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 is a party or by which it is bound.
(e) Such defeasance shall not cause any Securities of such series then
listed on any registered national securities exchange under the Exchange
Act, to be delisted.
(f) The Issuer shall have delivered to the Trustee an Opinion of
Counsel (who may be counsel to the Issuer) stating that (x) the Issuer has
received from, or there has been published by, the Internal Revenue Service
a ruling, or (y) since the date of this Indenture there has been a change
in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such 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 defeasance
had not occurred.
(g) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance under Section 9.6 have
been complied with.
SECTION 9.8. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of
Section 9.4, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or
56
other qualifying trustee -- collectively, for purposes of this Section 9.8, the
"Trustee") pursuant to Section 9.7 in respect of the Outstanding Securities of
such series shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture (including the
subordination provisions thereof and hereof), to the payment, either directly or
through any paying agent (including the F Issuer acting as its own paying agent)
as the Trustee may determine, to the Holders of such Securities, of all sums due
and to become due thereon in respect of principal and interest, but such money
need not be segregated from other funds except to the extent required by law.
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 9.8 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 the Outstanding Securities of such series.
Anything in this Article Nine to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon the Issuer's
written request any money or U.S. Government Obligations held by it as provided
in Section 9.7 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance.
ARTICLE TEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 10.1. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity and to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.6 for
Securities of such series.
SECTION 10.2. Notice of Redemption; Selection of Securities. In case
the Issuer shall desire to exercise any right to redeem all or any part of the
Securities of any series in accordance with their terms, the Issuer shall fix a
date for redemption and shall notify the Trustee in writing, at least 45 days
before such redemption date. The Issuer, or at the request and at the expense of
the Issuer, the Trustee, shall mail a notice of such redemption, at least 30
days and not more than 60 days prior to the date fixed for redemption, to the
Holders of Securities of such series so to be redeemed in whole or in part at
their last addresses as they shall appear in the Register. 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 CUSIP
number of the Securities, if any, the date fixed for redemption, the redemption
price, the place or places of
57
payment, if the Securities of such series are convertible at the option of the
Holder into shares of Common Stock, the Conversion Price, the place or places of
conversion, that Securities called for redemption may be converted at any time
before the close of business on the third Business Day prior to the date fixed
for redemption, or on such earlier date, if any, specified pursuant to Section
2.6 for Securities of such series, and if not converted prior to the close of
business on such date, the right of conversion will be lost and that Holders who
want to convert Securities must satisfy the requirements set forth in the terms
thereof, that payment will be made upon presentation and surrender of such
Securities, that any interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date any interest
thereon or on the portions thereof to be redeemed will cease to accrue. If less
than all of the Outstanding Securities of a series are to be redeemed, the
notice of redemption shall specify the number or numbers or distinguishing
symbol or symbols of the Securities to be redeemed. 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.
Prior to 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, segregate and hold in trust as required by the Trust Indenture Act of
1939) an amount of money (in the currency or units of currencies or composite
currency in which the Securities so called for redemption are denominated or an
appropriate equivalent thereof) sufficient to redeem on the redemption date all
the Securities of such series or portions thereof 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 (or less than the full principal amount of each Security in
such series is to be redeemed), the Issuer will deliver to the Trustee at least
60 days prior to the date fixed for redemption (or such shorter period if
acceptable to the Trustee) an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed and, if the Trustee is not acting
as the repository of the Register for such series, a current list of all
Outstanding Securities of such series.
If less than all the Outstanding 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; however,
if less than all the Securities of any series with differing issue dates,
interest rates and stated maturities are to be redeemed, the Issuer in its sole
discretion shall select the particular Securities to be redeemed and shall
notify the Trustee in writing thereof at least 45 days prior to the relevant
redemption date. Except as otherwise specified for Securities of a particular
series pursuant to Section 2.6, Securities may be redeemed in part in amounts
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
58
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 10.3. Payment of Securities Called for Redemption. If notice
of redemption has been given as provided in Section 10.2, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places 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 or portions thereof 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 5.4 and 9.4, such Securities shall cease from and after the
date fixed for redemption to be entitled to any benefit or security under this
Indenture (including, but not limited to, conversion rights pursuant to Article
Twelve which shall cease at the close of business on the third Business Day
prior to the date fixed for redemption or on such earlier day, if any, specified
pursuant to Section 2.6 for such Securities), and the Holders of such Securities
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 if the date fixed for redemption is an interest payment date, the
interest due on that date shall be payable to the Holders of such Securities
registered as such on the relevant record date according to their terms.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof so to be redeemed shall,
until paid or duly provided for, bear interest from the date fixed for
redemption at the Overdue Rate applicable to such series.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and make available for delivery
to or on the order of the Holder thereof, at the expense of the 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 10.4. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number or other distinguishing symbol in a written statement signed by an
authorized officer of the Issuer and delivered to the Trustee at least 10 days
prior to the date on which Securities are to be selected for redemption as being
owned of record and beneficially by, and not pledged or hypothecated by, either
(a) the Issuer or (b) an entity specifically identified in such written
statement directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer.
SECTION 10.5. Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking
59
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 2.14, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, (c)
receive credit for Securities of such series (not previously so credited) that
have been surrendered to the Issuer for conversion, or (d) 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 Securities
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, and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
On or before the sixtieth day next preceding each sinking fund payment
date for any series of Securities, the Issuer will deliver to the Trustee a
certificate of the Issuer (which need not contain the statements required by the
Trust Indenture Act of 1939) signed by an officer of the Issuer who is one of
the officers authorized to sign an Officers' Certificate (a) specifying the
portion, if any, of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion, if any, to be satisfied by credit of Securities
of such series, (b) stating that none of such Securities has theretofore been so
credited, (c) stating that no Event of Default with respect to such series has
occurred (which has not been waived or cured) and is 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 2.14 to the Trustee with such certificate. Such certificate
shall be irrevocable and upon its receipt by the Trustee the Issuer shall become
obligated to make all the cash payments or payments therein referred to, if any
(which cash may be deposited with the Trustee or with one or more paying agents
or, if the Issuer is acting as its own paying agent, segregated and held in
trust as required by the Trust Indenture Act of 1939), on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such sixtieth day, to deliver such certificate 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 U.S.$100,000 or, if payments on
60
Securities of such series are to be made in a currency other than Dollars or in
units or composites of two more currencies, the equivalent thereof (based upon
the Market Exchange Rate on the sixtieth day preceding the relevant sinking fund
payment date or if the Market Exchange Rate is not available for such date, the
immediately preceding date for which the Market Exchange Rate is available) in
the relevant currency or unit or composite currency (or such other amount as is
specified for a particular series of Securities pursuant to Section 2.6), or a
lesser sum if the Issuer shall so request, with respect to the Securities of any
particular series, such cash shall be applied by the Trustee (or by the Issuer
if the Issuer is acting as its own paying agent) on the sinking fund payment
date on which such payment is made (or, if such payment is made before a sinking
fund payment date, on the next sinking fund payment date following the date of
such payment) to the redemption of such Securities at the sinking fund
redemption price specified in such Securities for operation of the sinking fund
together with accrued interest, if any, to the date fixed for redemption. If
such amount shall be U.S.$100,000 or, if payments on Securities of such series
are to be made in a currency other than Dollars or in units or composites of two
more currencies, the equivalent thereof (based upon the Market Exchange Rate on
the sixtieth day preceding the relevant sinking fund payment date or if the
Market Exchange Rate is not available for such date, the immediately preceding
date for which the Market Exchange Rate is available) in the relevant currency
or unit or composite currency (or such other amount as is specified for the
particular series pursuant to Section 2.6), or less and the Issuer makes no such
request then it shall be carried over until a sum in excess of U.S.$100,000, or
the equivalent thereof in the relevant currency or unit or composite currency,
is available.
The Trustee shall select, in the manner provided in Section 10.2, for
redemption on such sinking fund payment date, Securities of such series with
respect to which cash payment of the applicable sinking fund redemption price
will be made and shall (if requested in writing by the Issuer) inform the Issuer
of the serial numbers or other distinguishing symbols of the Securities of such
series (or portions thereof) so selected. If the Trustee shall be required to
select Securities of any series for the sinking fund and is not acting as
repository of the Register for such series, at least 60 days prior to the
sinking fund payment date the Issuer shall furnish to the Trustee a current list
of all Outstanding Securities of such series. Securities of any series which are
(a) owned by the Issuer or an entity actually 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 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 notify the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the
manner provided in Section 10.2, except that the notice of redemption shall also
state that the Securities are being redeemed by operation of the sinking fund
(and with the effect provided in Section 10.3) for the redemption of Securities
of such series which, if applicable, is in part at the option of the Issuer.
The amount of any sinking fund payments not so applied or allocated by
the Trustee (or by the Issuer if the Issuer is acting as its own paying agent)
to the redemption of
61
Securities of such series shall be added to the next cash sinking fund payment
received by the Trustee (or if the Issuer is acting as its own paying agent,
segregated and held in trust as required by the Trust Indenture Act of 1939) for
such series and, together with such payment (or such amount so segregated),
shall be applied in accordance with the provisions of this Section 10.5. Any and
all sinking fund moneys held by the Trustee (or if the Issuer is acting as its
own paying agent, segregated and held in trust as required by the Trust
Indenture Act of 1939) 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 by the Trustee (or by the Issuer if the Issuer is acting as its own
paying agent), 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 if the Issuer is acting as its own paying agent will
segregate and hold in trust as required by the Trust Indenture Act of 1939) or
shall otherwise provide for the payment of all interest accrued to the date
fixed for redemption on Securities (or portions thereof) to be redeemed on such
sinking fund payment date.
Neither the Issuer nor the Trustee shall redeem or cause to be
redeemed any Securities of a series with sinking fund moneys or mail 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, if any, on such
Securities or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph, with respect to such Securities) except
that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee (or the Issuer if the Issuer is acting
as its own paying agent) shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer (or the Issuer shall have
segregated) 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 Four and held for the payment of all
such Securities. Notwithstanding anything in the foregoing to the contrary, in
case such default or Event of Default shall have been waived as provided in
Section 4.9 or the default or Event of 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 10.5 to the redemption of such Securities.
SECTION 10.6. Conversion Arrangement on Call for Redemption. If in
connection with any redemption of Securities of any series with respect to which
the Holders have the right to convert such Securities into shares of Common
Stock, the Holders thereof do not elect to convert such Securities, the Issuer
may arrange for the purchase and conversion of such Securities by an agreement
with one or more investment banking firms or other purchasers to purchase such
Securities by paying to the Trustee in trust for the Holders, not later than the
close of business on the third Business Day prior to the date fixed for
redemption, an amount not less than the applicable redemption price, together
with interest accrued to the date fixed for redemption, of such Securities.
Notwithstanding anything to the contrary contained in this Article Ten, the
obligation of the Issuer to pay the redemption price of such Securities,
together with
62
interest accrued to the date fixed for redemption, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such purchasers
to the Trustee in trust for the Holders. If such an agreement is made, any
Securities not duly surrendered for conversion by the Holders thereof may, at
the option of the Issuer, be deemed, to the fullest extent permitted by law, to
have been acquired by such purchasers from such Holders and (notwithstanding
anything to the contrary contained in Article Twelve) surrendered by such
purchasers for conversion, all as of immediately prior to the close of business
on the third Business Day prior to the date fixed for redemption, subject to
payment by the purchasers as specified above. The Trustee shall hold and dispose
of any such amount paid to it in the same manner as it would moneys deposited
with it by the Issuer for the redemption of Securities. Without the Trustee's
prior written consent, no arrangement between the Issuer and such purchasers for
the purchase and conversion of any Securities shall increase or otherwise affect
any of the powers, duties, responsibilities or obligations of the Trustee as set
forth in this Indenture, and the Issuer agrees to indemnify the Trustee from,
and hold it harmless against, any and all loss, liability, claim, damage or
expense arising out of or in connection with any such arrangement for the
purchase and conversion of any Securities between the Issuer and such purchasers
to which the Trustee has not consented in writing, including the costs and
expenses incurred by the Trustee and its counsel in the defense of any claim
(whether asserted by the Issuer, a Holder or any other Person) or liability
arising out of or in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this Indenture.
ARTICLE ELEVEN
SUBORDINATION OF SECURITIES
SECTION 11.1. Agreement that Securities Subordinated to Extent
Provided. The Issuer, for itself, its successors and assigns, covenants and
agrees, and each Holder of Securities likewise covenants and agrees by his
acceptance thereof, that the obligation to make any payment pursuant to the
Securities for the principal of (and premium, if any) and interest on each and
all of the Securities is hereby expressly subordinated, to the extent and in the
manner hereinafter set forth, to the prior payment in full of all Issuer Senior
Indebtedness. All Securities issued hereunder shall rank pari passu with all
other Securities issued hereunder.
SECTION 11.2. Liquidation, Dissolution, Bankruptcy. Upon any payment
or distribution of the assets of the Issuer to creditors upon a total or partial
liquidation or a total or partial dissolution of the Issuer or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Issuer or its respective properties:
(i) holders of Issuer Senior Indebtedness shall be entitled to receive
payment in full of all Issuer Senior Indebtedness before the Holders shall
be entitled to receive any payment of principal of or interest (including
interest accruing subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Issuer under any applicable bankruptcy,
insolvency, or similar law now or hereafter in effect) on or other amounts
with respect to the Securities; and
63
(ii) until the Issuer Senior Indebtedness is paid in full, any payment
or distribution to which Securityholders would be entitled but for this
Article Eleven shall be made to holders of Issuer Senior Indebtedness.
SECTION 11.3. Default on Issuer Senior Indebtedness; Subrogation. The
Issuer may not pay the principal of, premium (if any) or interest (including
interest accruing subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Issuer under any applicable bankruptcy,
insolvency or similar law now or hereafter in effect) on or other amounts with
respect to the Securities or make any deposit pursuant to Section 9.6 or
repurchase, redeem or otherwise retire any Securities (collectively, "pay the
Securities") if (i) any Issuer Senior Indebtedness is not paid when due or (ii)
any other default on Issuer Senior Indebtedness occurs and the maturity of such
Issuer Senior Indebtedness is accelerated in accordance with its terms unless,
in either case, (x) the default has been cured or waived and any such
acceleration has been rescinded in writing or (y) such Issuer Senior
Indebtedness has been paid in full; provided, however, that the Issuer may pay
the Securities without regard to the foregoing if the Issuer and the Trustee
receive written notice approving such payment from the Representative of the
holders of Issuer Senior Indebtedness with respect to which either of the events
set forth in clause (i) or (ii) of the immediately preceding sentence has
occurred and is continuing. During the continuance of any default (other than a
default described in clause (i) or (ii) of the preceding sentence) with respect
to any Issuer Senior Indebtedness pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, the Issuer may not pay the Securities for a period (a "Payment Blockage
Period") commencing upon the receipt by the Issuer and the Trustee of written
notice (a "Blockage Notice") of such default from a Representative of the
holders of Issuer Senior Indebtedness specifying an election to effect a Payment
Blockage Period and ending 179 days thereafter (or earlier if such Payment
Blockage Period is terminated (i) by written notice to the Trustee and the
Issuer from the Representative who gave such Blockage Notice, (ii) because the
default giving rise to such Blockage Notice is no longer continuing or (iii) by
repayment in full of such Issuer Senior Indebtedness). Notwithstanding the
provisions of the immediately preceding sentence (but subject to the provisions
contained in the first sentence of this Section 11.3), unless the holders of
such Issuer Senior Indebtedness or a Representative of such holders shall have
accelerated the maturity of such Issuer Senior Indebtedness, the Issuer may
resume payments on the Securities after such Payment Blockage Period. Not more
than one Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to Issuer Senior
Indebtedness during such period.
After all Issuer Senior Indebtedness is paid in full and all
commitments in respect of the Issuer Senior Indebtedness have expired or
terminated and until the Securities are paid in full, Securityholders shall be
subrogated (without any duty on the part of the holders of Issuer Senior
Indebtedness to warrant, create, effectuate, preserve or protect such
subrogation) to the rights of holders of Issuer Senior Indebtedness to receive
distributions applicable to Issuer Senior Indebtedness. A distribution made
under this Article Eleven to holders of Issuer Senior Indebtedness which
otherwise would have been made to Securityholders is not, as between the Issuer
and Securityholders, a payment by the Issuer of Issuer Senior Indebtedness.
64
SECTION 11.4. Obligation of the Issuer Unconditional. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair as between the Issuer and the Holders of the
Securities, the obligation of the Issuer, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest (including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Issuer under any
applicable bankruptcy, insolvency or similar law now or hereafter in effect) on
the Securities as and when the same shall become due and payable in accordance
with the terms of the Securities, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Issuer other than
the holders of the Issuer Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or the Holder of any Securities 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
Issuer Senior Indebtedness in respect of cash, property or securities of the
Issuer received by the exercise of any such remedy.
SECTION 11.5. No Fiduciary Duty to Holders of Issuer Senior
Indebtedness. The Trustee shall not be deemed to owe any duty to the holders of
Issuer Senior Indebtedness, except as provided in this Article and shall not be
liable to any such holders if the Trustee shall in good faith mistakenly pay
over or distribute to Holders of Securities or to the Issuer or to any other
person cash, property or securities to which any holders of Issuer Senior
Indebtedness shall be entitled by virtue of this Article or otherwise. With
respect to the holders of Issuer Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set fort in this Article and no implied covenants or obligations
with respect to holders of Issuer Senior Indebtedness shall be read into this
Indenture against the Trustee.
SECTION 11.6. Notice to Trustee and Paying Agent of Facts Prohibiting
Payments. Notwithstanding any of the provisions of this Article or any other
provision of this Indenture to the contrary, neither the Trustee nor any paying
agent shall at any time be charged with knowledge of the existence of any facts
which would prohibit the making of any payment of moneys to or by the Trustee or
any paying agent, unless and until the Trustee or any paying agent shall have
received an Officers' Certificate from the Issuer or from one or more holders of
Issuer Senior Indebtedness or from any trustee or other representative therefor
who shall have been certified by the Issuer or otherwise established to the
reasonable satisfaction of the Trustee or any paying agent to be such a holder
or trustee or other representative and, prior to the receipt of any such written
notice, the Trustee or any paying agent, subject to the provisions of Section
5.1, shall be entitled in all respects to assume that no such facts exist;
provided that, if prior to the fifth Business Day preceding the date upon which
by the terms hereof any such moneys may become payable, or in the event of the
execution of an instrument pursuant to Section 9.1 acknowledging satisfaction
and discharge of this Indenture, then if prior to the second Business Day
preceding the date of such execution, the Trustee or any paying agent shall not
have received with respect to such moneys the notice provided for in this
Section, then, anything herein contained to the contrary notwithstanding, the
Trustee or any paying agent may, in its discretion, receive such moneys and
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary, which may be received by it on or after
such date; provided,
65
however, no such application shall affect the obligations under this Article of
the persons receiving such moneys from the Trustee or any paying agent.
SECTION 11.7. Application by Trustee of Moneys. Anything in this
Indenture to the contrary notwithstanding, any deposit of moneys by the Issuer
with the Trustee or any paying agent (whether or not in trust) for the payment
of the principal of (and premium, if any) or interest on any Securities shall,
except as provided in Section 11.6, be subject to the provisions of Sections
11.1, 11.2 and 11.3.
SECTION 11.8. Subordination Rights Not Impaired By Acts or Omissions
of Issuer or Holders of Issuer Senior Indebtedness. No right of any present or
future holders of any Issuer Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Issuer or by any act or failure to act,
in good faith, by any such holder, or by any noncompliance by the Issuer with
the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof with which any such holder may have or be otherwise charged.
The holders of Issuer Senior Indebtedness may at any time or from time to time
and in their absolute discretion, change the manner, place or terms of payment,
change or extend the time of payment of, or renew or alter, any such Issuer
Senior Indebtedness, or amend or supplement any instrument pursuant to which any
such Issuer Senior Indebtedness is issued or by which it may be secured, or
release any security therefor, or exercise or refrain from exercising any other
of their rights under the Issuer Senior Indebtedness, including, without
limitation, the waiver of default thereunder, all without notice to or assent
from the holders of the Securities or the Trustee and without affecting the
obligations, the Trustee or the Holders of the Securities under this Article.
SECTION 11.9. Authorization of Trustee to Effectuate Subordination of
Securities. Each Holder of a Security, by his acceptance thereof, authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article.
SECTION 11.10. Certain Issuances Deemed Payment. For purposes of this
Article Eleven only, (a) the issuance and delivery of (1) junior securities in
respect of any Security of any series or (2) Common Stock upon conversion of a
Security of any series in accordance with Article Twelve shall not be deemed to
constitute a payment or distribution on account of the principal of or premium,
if any, or interest, if any, on such Security or on account of the purchase or
other acquisition of such Security, and (b) the payment, issuance or delivery of
cash, property or securities (other than junior securities) in respect of a
Security of any series shall be deemed to constitute payment on account of
principal of such Security. For the purposes of this Section, the term "junior
securities" means (a) shares of any class of the Issuer and (b) securities of
the Issuer which are subordinated in right of payment to all Issuer Senior
Indebtedness which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article Eleven.
Nothing contained in this Article Eleven or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as among the Issuer, the
creditors of either of them other than holders of Issuer Senior Indebtedness and
the Holders of the Securities, the right, which is
66
absolute and unconditional, of the Holder of any Security to convert such
Security in accordance with Article Twelve.
SECTION 11.11. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Issuer
referred to in this Article Eleven, the Trustee, subject to the provisions of
Section 5.1, and the Holders of the Securities shall be entitled to conclusively
rely upon any order or decree entered by a court of competent jurisdiction in
which any proceedings of the nature referred to in Section 11.2 are pending, or
a certificate of the administrator, receiver, liquidator, custodian, trustee,
other similar officer of the Issuer 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 Issuer Senior Indebtedness and other indebtedness
of the Issuer, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Eleven.
SECTION 11.12. Rights of Trustee as a Holder of Issuer Senior
Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article Eleven
with respect to any Issuer Senior Indebtedness which may at any time be held by
it, to the same extent as any other holder of Issuer Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 5.5.
ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 12.1. General. If so provided in the terms of the Securities
of any series established in accordance with Section 2.6, the principal amount
of the Securities of such series shall be convertible into shares of Common
Stock in accordance with this Article Twelve and the terms of such series of
Securities if such terms differ from this Article Twelve; provided, however,
that if any of the terms by which any such Security shall be convertible into
Common Stock are set forth in a supplemental indenture entered into with respect
thereto pursuant to Article Seven hereof, the terms of such supplemental
indenture shall govern.
SECTION 12.2. Right to Convert. Subject to and upon compliance with
the provisions of this Article, the Holder of any Security that is convertible
into Common Stock shall have the right, at such Holder's option, at any time on
or after the date of original issue of such Security or such other date
specified in the applicable Resolution delivered pursuant to Section 2.6 and
prior to the close of business on the date set forth in such Resolution (or if
such Security is called for redemption, then in respect of such Security to and
including but not after the close of business on the third Business Day prior to
the date fixed for redemption or on such earlier day, if any, specified pursuant
to Section 2.6 for such Security unless the Issuer shall default in the payment
due on such date) to convert the principal amount of any such Security of any
authorized denomination or, in the case of any Security to be converted of a
denomination greater than the
67
minimum denomination for Securities of the applicable series, any portion of
such principal which is an authorized denomination or an integral multiple
thereof, into that number of fully paid and nonassessable shares of Common Stock
obtained by dividing the principal amount of such Security or portion thereof
surrendered for conversion by the Conversion Price therefor by surrender of the
Security so to be converted in whole or in part in the manner provided in
Section 12.3. Such conversion shall be effected by the Issuer in accordance with
the provisions of this Article and the terms of the Securities, if such terms
differ from this Article.
SECTION 12.3. Manner of Exercise of Conversion Privilege; Delivery of
Common Stock; No Adjustment for Interest or Dividends. In order to effect a
conversion, the holder of any Security to be converted, in whole or in part,
shall surrender such Security to the Trustee or conversion agent at the office
or agency maintained by the Issuer for such purpose, as provided in Section 3.2
and shall deliver written notice of conversion, which shall be substantially in
the Form of Election to Convert as provided for in Section 2.17, to such office
or agency. The notice shall be accompanied by payments in respect of transfer
taxes, if required pursuant to Section 12.6. Such notice, once given, shall be
irrevocable, and may not be withdrawn. Each Security surrendered for conversion
shall, unless the shares of Common Stock deliverable on conversion are to be
issued in the same name as the registration of such Security, be duly endorsed
by or be accompanied by instruments of transfer, in form satisfactory to the
Issuer, duly executed by the Holder or such Holder's duly authorized attorney,
and by any payment required pursuant to this Section 12.3. As promptly as
practicable after the surrender of such Security and notice, as aforesaid, the
Issuer shall deliver or cause to be delivered at such office or agency to such
Holder, or on such Holder's written order, a certificate or certificates for the
number of full shares of Common Stock deliverable upon the conversion of such
Security or portion thereof in accordance with the provisions of this Article
and a check or cash in respect of any fractional interest in respect of a share
of Common Stock arising upon such conversion as provided in Section 12.4. In
case any Security of a denomination greater than the minimum denomination for
Securities of the applicable series shall be surrendered for partial conversion,
the Issuer shall execute and register and the Trustee shall authenticate and
deliver to or upon the written order of the Issuer and the Holder of the
Security so surrendered, without charge to such Holder, a new Security or
Securities of the same series in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Security.
Each conversion shall be deemed to have been effected as of the date on which
such Security shall have been surrendered (accompanied by the funds, if any,
required by the last paragraph of this Section) and such notice received by the
Issuer, as aforesaid, and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be registrable upon
such conversion shall become on said date the holder of record of the shares
represented thereby, provided, however, that any such surrender on any date when
the stock transfer books of the Issuer shall be closed shall constitute the
person in whose name the certificates are to be registered as the record holder
thereof for all purposes on the next succeeding day on which such stock transfer
books are open, but such conversion shall be at the Conversion Price in effect
on the date upon which such Security shall have been so surrendered.
Any Security or portion thereof surrendered for conversion during the
period from the close of business on the record date for any interest payment
date to the opening of business on such interest payment date shall (unless such
Security or portion thereof being converted shall
68
have been called for redemption or submitted for repayment on a date during such
period) be accompanied by payment, in legal tender or other funds acceptable to
the Issuer, of an amount equal to the interest otherwise payable on such
interest payment date on the principal amount being converted; provided,
however, that no such payment need be made if there shall exist at the time of
conversion a default in the payment of interest on the applicable series of
Securities. An amount equal to such payment shall be paid by the Issuer on such
interest payment date to the Holder of such Security on such record date;
provided, however, that if the Issuer shall default in the payment of interest
on such interest payment date, such amount shall be paid to the Person who made
such required payment. Except as provided above in this Section, no adjustment
shall be made for interest accrued on any Security converted or for dividends on
any shares issued upon the conversion of such Security as provided in this
Article.
SECTION 12.4. Cash Payments in Lieu of Fractional Shares. No
fractional shares of Common Stock shall be delivered upon conversion of
Securities. If more than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares of Common Stock which shall
be deliverable upon conversion shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. Instead of any fraction of a share of Common
Stock which would otherwise be deliverable upon the conversion of any Security,
the Issuer shall pay to the Holder of such Security an amount in cash (computed
to the nearest cent, with one-half cent being rounded upward) equal to the same
fraction of the closing price (determined in the manner provided in Section
12.5(a)(v)) of the Common Stock on the Trading Day (as defined in Section
12.5(a)(v)) next preceding the date of conversion.
SECTION 12.5. Conversion Price Adjustments; Effect of
Reclassification, Mergers, Consolidations and Sales of Assets. (a) The
Conversion Price shall be adjusted from time to time as follows:
(i) In case the Issuer shall (x) pay a dividend or make a distribution
on the Common Stock in shares of Common Stock, (y) subdivide the
outstanding Common Stock into a greater number of shares or (z) combine the
outstanding Common Stock into a smaller number of shares, the Conversion
Price shall be adjusted so that the Holder of any Security thereafter
surrendered for conversion shall be entitled to receive the number of
shares of Common Stock of the Issuer which such Holder would have owned or
have been entitled to receive after the happening of any of the events
described above had such Security been converted immediately prior to the
record date in the case of a dividend or the effective date in the case of
subdivision or combination. An adjustment made pursuant to this
subparagraph (i) shall become effective immediately after the record date
in the case of a dividend, except as provided in subparagraph (vii) below,
and shall become effective immediately after the effective date in the case
of a subdivision or combination.
(ii) In case the Issuer shall issue rights or warrants to all holders
of shares of Common Stock entitling them (for a period expiring within 45
days after the record date mentioned below) to subscribe for or purchase
shares of Common Stock at a price per share less than the current market
price per share of Common Stock (as defined for purposes of this
subparagraph (ii) in subparagraph (v) below), the Conversion Price in
69
effect after the record date for the determination of stockholders entitled
to receive such rights or warrants shall be determined by multiplying the
Conversion Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of shares of Common
Stock outstanding on such record date plus the number of shares of Common
Stock which the aggregate offering price of the total number of shares of
Common Stock so offered would purchase at such current market price, and
the denominator of which shall be the number of shares of Common Stock
outstanding on the record date for issuance of such rights or warrants plus
the number of additional shares of Common Stock receivable upon exercise of
such rights or warrants. Such adjustment shall be made successively
whenever any such rights or warrants are issued, and shall become effective
immediately, except as provided in subparagraph (vii) below, after such
record date.
(iii) In case the Issuer shall distribute to all holders of Common
Stock any shares of capital stock of the Issuer (other than Common Stock)
or evidences of its indebtedness or assets (excluding cash dividends or
distributions paid from retained earnings of the Issuer or dividends
payable in Common Stock) or rights or warrants to subscribe for or purchase
any of its securities (excluding those rights or warrants referred to in
subparagraph (ii) above) (any of the foregoing being hereinafter in this
subparagraph (iii) called the "Assets"), then, in each such case, the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior
to the record date for determination of stockholders entitled to receive
such distribution by a fraction the numerator of which shall be the current
market price per share (as defined for purposes of this subparagraph (iii)
in subparagraph (v) below) of the Common Stock at such record date for
determination of stockholders entitled to receive such distribution less
the then fair market value (as determined by the Board of Directors, whose
determination shall be conclusive) of the portion of the Assets so
distributed applicable to one share of Common Stock, and the denominator of
which shall be the current market price per share (as defined in
subparagraph (v) below) of the Common Stock at such record date. Such
adjustment shall become effective immediately, except as provided in
subparagraph (vii) below, after the record date for the determination of
stockholders entitled to receive such distribution.
(iv) If, pursuant to subparagraph (ii) or (iii) above, the number of
shares of Common Stock into which a Security is convertible shall have been
adjusted because the Issuer has declared a dividend, or made a
distribution, on the outstanding shares of Common Stock in the form of any
right or warrant to purchase securities of the Issuer, or the Issuer has
issued any such right or warrant, then, upon the expiration of any such
unexercised right or unexercised warrant, the Conversion Price shall
forthwith be adjusted to equal the Conversion Price that would have applied
had such right or warrant never been declared, distributed or issued.
(v) For the purpose of any computation under subparagraphs (ii) or
(iii) above, the current market price per share of Common Stock on any date
shall be deemed to be the average of the daily closing prices of the Common
Stock for the shorter of (i) 30 consecutive Trading Days ending on the last
full Trading Day on the exchange or market
70
specified in the second following sentence prior to the Time of
Determination or (ii) the period commencing on the date next succeeding the
first public announcement of the issuance of such rights or warrants or
such distribution through such last full Trading Day prior to the Time of
Determination. The term "Time of Determination" as used herein shall be the
time and date of the earlier of (x) the determination of stockholders
entitled to receive such rights, warrants or distributions or (y) the
commencement of "ex-dividend" trading in the Common Stock on the exchange
or market specified in the following sentence. The closing price for each
day shall be the reported last sales price, regular way, or, in case no
sale takes place on such day, the average of the reported closing bid and
asked prices, regular way, in either case as reported on the New York Stock
Exchange Composite Tape or, if the Common Stock is not listed or admitted
to trading on the New York Stock Exchange at such time, on the principal
national securities exchange on which the Common Stock is listed or
admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on the Nasdaq National Market ("NNM") or, if
the last sales price or closing bid and asked prices for the Common Stock
on each such day shall not have been reported through NNM, the average of
the bid and asked prices for such date as furnished by any New York Stock
Exchange member firm regularly making a market in the Common Stock selected
for such purpose by the Issuer or, if no such quotations are available, the
fair market value of the Common Stock as determined by a New York Stock
Exchange member firm regularly making a market in the Common Stock selected
for such purpose by the Issuer. As used herein, the term "Trading Day" with
respect to Common Stock means (x) if the Common Stock is listed or admitted
for trading on the New York Stock Exchange or another national securities
exchange, a day on which the New York Stock Exchange or such other national
securities exchange, as the case may be, is open for business or (y) if the
Common Stock is quoted on NNM, a day on which trades may be made on NNM or
(z) otherwise, any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or obligated
by law or executive order to close.
(vi) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of this
subparagraph (vi) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Section 12.5(a) shall be made to the nearest cent or to the nearest
.01 of a share, as the case may be, with one-half cent and .005 of a share,
respectively, being rounded upward. Anything in this Section 12.5(a) to the
contrary notwithstanding, the Issuer shall be entitled to make such
reductions in the Conversion Price, in addition to those required by this
Section 12.5(a), as it in its discretion shall determine to be advisable in
order that any stock dividend, subdivision of shares, distribution of
rights or warrants to purchase stock or securities, or distribution of
other assets (other than cash dividends) hereafter made by the Issuer to
its stockholders shall not be taxable.
(vii) In any case in which this Section 12.5(a) provides that an
adjustment shall become effective immediately after a record date for an
event, the Issuer may defer until the occurrence of such event (x) issuing
to the Holder of any Security converted after such
71
record date and before the occurrence of such event the additional shares
of Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment and (y) paying to such
holder any amount of cash in lieu of any fractional share of Common Stock
pursuant to Section 12.4.
(viii) Whenever the Conversion Price is adjusted as herein provided,
the Issuer shall file with the Trustee an Officers' Certificate, setting
forth the Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment, which certificate shall
be conclusive evidence of the correctness of such adjustment; provided,
however, that the failure of the Issuer to file such Officers' Certificate
shall not affect the legality or validity of any corporate action by the
Issuer.
(ix) Whenever the Conversion Price for any series of Securities is
adjusted as provided in this Section 12.5(a), the Issuer shall cause to be
mailed to each Holder of Securities of such series at its then registered
address by first-class mail, postage prepaid, a notice of such adjustment
of the Conversion Price setting forth such adjusted Conversion Price and
the effective date of such adjusted Conversion Price; provided, however,
that the failure of the Issuer to give such notice shall not affect the
legality or validity of any corporate action by the Issuer.
(b) (i) Notwithstanding any other provision herein to the contrary, if
any of the following events occur, namely (x) any reclassification or
change of outstanding shares of Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination of the Common Stock),
(y) any consolidation, merger or combination of the Issuer with or into
another entity as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock, or
(z) any sale or conveyance of all or substantially all of the assets of the
Issuer to any other entity as a result of which holders of Common Stock
shall be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock, then
appropriate provision shall be made by supplemental indenture so that (A)
the Holder of any outstanding Security that is convertible into Common
Stock shall have the right to convert such Security into the kind and
amount of the shares of stock and securities or other property or assets
(including cash) that would have been receivable upon such
reclassification, change, consolidation, merger, combination, sale or
conveyance by a holder of the number of shares of Common Stock issuable
upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, combination, sale or
conveyance and (B) the number of shares of any such other stock or
securities into which such Security shall thereafter be convertible shall
be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the terms of adjustment provided for in
this Section, and Sections 12.2, 12.3, 12.4, 12.6, 12.7, 12.8 and 12.9
shall apply on like terms to any such other stock or securities.
72
(ii) In case of any reclassification or change of the Common Stock
(other than a subdivision or combination of its outstanding Common Stock,
or a change in par value, or from par value to no par value, or from no par
value to par value), or of any consolidation, merger or combination of the
Issuer with or into another corporation or of the sale or conveyance of all
or substantially all of the assets of the Issuer, the Issuer shall cause to
be filed with the Trustee and to be mailed to each Holder of Securities
that are convertible into shares of Common Stock at such Holder's
registered address, the date on which such reclassification, change,
consolidation, merger, combination, sale or conveyance is expected to
become effective, and the date as of which it is expected that holders of
Common Stock shall be entitled to exchange their Common Stock for stock,
securities or other property deliverable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance.
SECTION 12.6. Taxes on Shares Issued. The delivery of stock
certificates upon conversion of Securities shall be made without charge to the
Holder converting a Security for any tax in respect of the issue thereof. The
Issuer shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the delivery of stock registered in any name
other than of the Holder of any Security converted, and the Issuer shall not be
required to deliver any such stock certificate unless and until the person or
persons requesting the delivery thereof shall have paid to the Issuer the amount
of such tax or shall have established to the satisfaction of the Issuer that
such tax has been paid.
SECTION 12.7. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock. The Issuer covenants that all shares of
Common Stock which may be delivered upon conversion of Securities of any series
which are convertible into Common Stock will upon delivery be fully paid and
nonassessable by the Issuer and free from all taxes, liens and charges with
respect to the issue thereof.
The Issuer covenants that if any shares of Common Stock to be provided
for the purpose of conversion of Securities hereunder require registration with
or approval of any governmental authority under any Federal or state law before
such shares may be validly delivered upon conversion, the Issuer will in good
faith and as expeditiously as possible endeavor to secure such registration or
approval, as the case may be.
The Issuer further covenants that it will, if permitted by the rules
of the New York Stock Exchange, or such other national stock exchange on which
the Common Stock is listed or admitted to trading or if permitted by the rules
of Nasdaq if the Common Stock is approved by it for listing or quotation, list
and keep listed for so long as the Common Stock shall be so listed on such
exchange or Nasdaq, upon official notice of issuance, all Common Stock
deliverable upon conversion of Securities of any series which are convertible
into Common Stock.
SECTION 12.8. Responsibility of Trustee. Neither the Trustee nor any
conversion agent shall at any time be under any duty or responsibility to any
Holder of Securities to determine whether any facts exist which may require any
adjustment of the Conversion Price applicable to such Securities, or with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
73
provided to be employed, in making the same, or whether any such supplemental
indenture need be entered into. Neither the Trustee nor any conversion agent
shall be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at any time be delivered upon the conversion of any Security; and neither
the Trustee nor any conversion agent makes any representation with respect
thereto. Neither the Trustee nor any conversion agent shall be responsible for
any failure of the Issuer to deliver any shares of Common Stock or stock
certificates or other securities or property or cash upon the surrender of any
Security for the purpose of conversion or for any failure of the Issuer to
comply with any of the covenants of the Issuer contained in this Article Twelve.
SECTION 12.9. Covenant to Reserve Shares. The Issuer covenants that it
will at all times reserve and keep available, free from pre-emptive rights, out
of its authorized but unissued Common Stock, such number of shares of Common
Stock as shall then be deliverable upon the conversion of all Outstanding
Securities of any series of Securities which are convertible into Common Stock.
SECTION 12.10. Other Conversions. If so provided in a Resolution with
respect to the Securities of a series, the principal amount of the Securities of
such series may be convertible into or exchangeable for other securities of the
Issuer (which other securities may be issued under this Indenture or otherwise)
or convertible into or exchangeable for securities of another Person, and the
issuance of such securities upon any such conversion or exchange shall be made
in accordance with the terms of such Resolution.
ARTICLE THIRTEEN
[Intentionally Omitted]
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.1. Incorporators, Stockholders, Officers and Directors of
Issuer 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,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer 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 14.2. Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Except as provided in Article Eleven, nothing in this
Indenture or in the Securities, expressed or implied, shall give or be construed
to give to any Person, other than the
74
parties hereto and their successors and assigns and the Holders of the
Securities, any legal or equitable right, remedy or claim under this Indenture
or under any covenant, condition or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
SECTION 14.3. Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by the Issuer shall bind each of their successors and assigns, whether or not so
expressed.
SECTION 14.4. 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 may be given or served by being deposited
postage prepaid, first-class mail, in a post office letter box (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer is furnished by the Issuer to the Trustee) to Newmont Mining Corporation,
0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Treasurer. Any notice,
direction, request or demand by the Issuer or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing and received at its Corporate Trust
Office.
Where this Indenture provides for notice to Securityholders, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Securityholder
entitled thereto, at his last address as it appears in the Register. In any case
where notice to Securityholders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular
Securityholder shall affect the sufficiency of such notice with respect to other
Securityholders. 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 Securityholders 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. Notwithstanding anything to the
contrary elsewhere in this Indenture as to the giving of notice, any other form
of written notice is sufficient, if received.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer or
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then notwithstanding anything to the contrary
elsewhere in this Indenture as to the giving of notice, 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 14.5. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand as to which the
furnishing of such documents
75
is specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the Person
making such certificate or opinion has read such covenant or condition, (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 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. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information which is in the possession of the Issuer, upon
the certificate, statement or opinion of or representations by an officer or
officers of the Issuer, 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.
Any certificate, statement or opinion of an officer of the Issuer 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.
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 14.6. Official Acts by Successor Entity. Any act or proceeding
by any provision of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Issuer and may be done and
performed with like force and effect by the like board, committee or officer of
any entity that shall at the time be the lawful sole successor of the Issuer.
SECTION 14.7. Payments Due on Saturdays, Sundays and Legal Holidays.
Except as may be provided pursuant to Section 2.6 with respect to any series of
Tranche, 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 such interest, if any, 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
76
date fixed for redemption or repayment, and no interest shall accrue for the
period from and after such date.
SECTION 14.8. 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, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE.
SECTION 14.9. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 14.10. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience of reference only, are not
to be considered a part hereof and shall not affect the construction hereof.
SECTION 14.11. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act of 1939 that is required under such Act to be a part of and govern this
Indenture, the latter provisions shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act of 1939
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
77
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of __________, _____.
NEWMONT MINING CORPORATION
By
----------------------------
Name:
Title:
CITIBANK, N.A.,
as Trustee
By
----------------------------
Name:
Title:
78
