Exhibit 4.1
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COMMERCE BANCORP, INC.
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INDENTURE
Dated as of [_______________ ___, 20__]
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THE BANK OF NEW YORK
as Trustee
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SENIOR DEBT SECURITIES
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COMMERCE BANCORP, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF [______________ ___, 20___]
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
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310(a)(1) 6.09
310(a)(2) 6.09
310(a)(3) N/A
310(a)(4) N/A
310(a)(5) 6.09
310(b) 6.08; 6.10
310(c) N/A
311(a) 6.13
311(b) 6.13
311(b)(2) 6.13
312(a) 7.01; 7.02(a)
312(b) 7.02(b)
312(c) 7.02(c)
313(a) 7.03(a)
313(b) 7.03(b)
313(c) 7.03(a), 7.03(b)
313(d) 7.03(b)
314(a)(1), (2) and (3) 7.04
314(a)(4) N/A
314(b) N/A
314(c)(1) 1.02
314(c)(2) 1.02
314(c)(3) N/A
314(d) N/A
314(e) 1.02
314(f) N/A
315(a) 6.01(a)
315(b) 6.02; 7.03(a)(6)
315(c) 6.01(b)
315(d) 6.01(c)
315(d)(1) 6.01(c)(1)
315(d)(2) 6.01(c)(2)
315(d)(3) 6.01(c)(3)
315(e) 5.14
316(a) 1.01
316(a)(1)(A) 5.02; 5.12
316(a)(1)(B) 5.13
316(a)(2) N/A
316(b) 5.08
316(c) 1.04 (g)
317(a)(1) 5.03
317(a)(2) 5.04
317(b) 10.03
318(a) 1.07
THIS RECONCILIATION AND TIE SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE PART OF
THE INDENTURE.
TABLE OF CONTENTS
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PAGE
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions......................................................................................1
Section 1.02 Compliance Certificates and Opinions.............................................................7
Section 1.03 Form of Documents Delivered to Trustee...........................................................8
Section 1.04 Acts of Securityholders..........................................................................9
Section 1.05 Notices, etc., to Trustee and Company...........................................................10
Section 1.06 Notice to Securityholders; Waiver...............................................................10
Section 1.07 Conflict with Trust Indenture Act...............................................................11
Section 1.08 Effect of Headings and Table of Contents........................................................11
Section 1.09 Successors and Assigns..........................................................................12
Section 1.10 Separability Clause.............................................................................12
Section 1.11 Benefits of Indenture...........................................................................12
Section 1.12 Governing Law...................................................................................12
Section 1.13 Legal Holidays..................................................................................12
Section 1.14 Waiver of Trial by Jury.........................................................................12
ARTICLE II
SECURITY FORMS
Section 2.01 Forms Generally.................................................................................13
Section 2.02 Form of Securities..............................................................................13
Section 2.03 Form of Trustee's Certificate of Authentication.................................................14
ARTICLE III
THE SECURITIES
Section 3.01 Title and Terms.................................................................................14
Section 3.02 Denominations...................................................................................16
Section 3.03 Execution, Authentication, Delivery and Dating..................................................16
Section 3.04 Temporary Securities............................................................................18
Section 3.05 Registration, Registration of Transfer and Exchange.............................................19
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities................................................21
Section 3.07 Payment of Interest; Interest Rights Preserved..................................................22
Section 3.08 Persons Deemed Owners...........................................................................24
Section 3.09 Cancellation....................................................................................24
Section 3.10 Computation of Interest.........................................................................24
Section 3.11 CUSIP Numbers...................................................................................24
i
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture.........................................................25
Section 4.02 Application of Trust Money......................................................................26
Section 4.03 Satisfaction, Discharge and Defeasance of Securities of Any Series..............................26
Section 4.04 Repayment to Company............................................................................28
Section 4.05 Reinstatement...................................................................................29
ARTICLE V
REMEDIES
Section 5.01 Events of Default...............................................................................29
Section 5.02 Acceleration of Maturity; Rescission and Annulment..............................................30
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.................................32
Section 5.04 Trustee May File Proofs of Claim................................................................32
Section 5.05 Trustee May Enforce Claims Without Possession of Securities.....................................33
Section 5.06 Application of Money or Other Property Collected................................................33
Section 5.07 Limitation on Suits.............................................................................34
Section 5.08 Unconditional Right of Securityholders to Receive Principal, Premium,
Maturity Consideration and Interest.............................................................34
Section 5.09 Restoration of Rights and Remedies..............................................................35
Section 5.10 Rights and Remedies Cumulative..................................................................35
Section 5.11 Delay or Omission Not Waiver....................................................................35
Section 5.12 Control by Holders..............................................................................35
Section 5.13 Waiver of Past Defaults.........................................................................36
Section 5.14 Undertaking for Costs...........................................................................36
Section 5.15 Waiver of Stay or Extension Laws................................................................37
ARTICLE VI
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities.............................................................37
Section 6.02 Notice of Defaults..............................................................................38
Section 6.03 Certain Rights of Trustee.......................................................................38
Section 6.04 Not Responsible for Recitals or Issuance of Securities..........................................40
Section 6.05 May Hold Securities.............................................................................40
Section 6.06 Money or Other Property Held in Trust...........................................................40
Section 6.07 Compensation and Reimbursement..................................................................40
Section 6.08 Disqualification; Conflicting Interests.........................................................41
Section 6.09 Corporate Trustee Required; Eligibility.........................................................41
Section 6.10 Resignation and Removal; Appointment of Successor...............................................42
Section 6.11 Acceptance of Appointment by Successor..........................................................44
Section 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee..........................45
Section 6.13 Preferential Collection of Claims Against Company...............................................45
Section 6.14 Appointment of Authenticating Agent.............................................................46
Section 6.15 Trustee Not Fiduciary for Holders of Senior Indebtedness........................................46
ii
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders.......................................47
Section 7.02 Preservation of Information; Communications to Holders..........................................48
Section 7.03 Reports by Trustee..............................................................................49
Section 7.04 Reports by Company..............................................................................49
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 8.01 Company May Consolidate, etc., Only on Certain Terms............................................50
Section 8.02 Successor Corporation Substituted...............................................................51
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Securityholders......................................51
Section 9.02 Supplemental Indentures with Consent of Securityholders.........................................53
Section 9.03 Execution of Supplemental Indentures............................................................54
Section 9.04 Effect of Supplemental Indentures...............................................................54
Section 9.05 Conformity with Trust Indenture Act.............................................................55
Section 9.06 Reference in Securities to Supplemental Indentures..............................................55
ARTICLE X
COVENANTS
Section 10.01 Payment of Principal, Premium, if any, the Maturity Consideration and Interest.................55
Section 10.02 Maintenance of Office or Agency................................................................55
Section 10.03 Money or Other Property for Securities Payments and Deliveries to Be Held in Trust.............56
Section 10.04 Additional Amounts.............................................................................57
Section 10.05 Corporate Existence............................................................................58
Section 10.06 Statement as to Compliance.....................................................................58
Section 10.07 Waiver of Certain Covenants....................................................................59
Section 10.08 Calculation of Original Issue Discount.........................................................59
Section 10.09 Statement by Officers as to Default............................................................59
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article.......................................................................59
Section 11.02 Election to Redeem; Notice to Trustee..........................................................60
Section 11.03 Selection by Trustee of Securities to Be Redeemed..............................................60
Section 11.04 Notice of Redemption...........................................................................60
Section 11.05 Deposit of Redemption Price....................................................................61
Section 11.06 Securities Payable on Redemption Date..........................................................62
Section 11.07 Securities Redeemed in Part....................................................................62
iii
ARTICLE XII
[Conversion of Securities]
Section 12.01 Conversion Privilege...........................................................................62
Section 12.02 Exercise of Conversion Privilege...............................................................63
Section 12.03 Fractional Shares..............................................................................64
Section 12.04 Adjustment of Conversion Price.................................................................64
Section 12.05 Notice of Adjustments of Conversion Price......................................................66
Section 12.06 Notice of Certain Corporate Action.............................................................67
Section 12.07 Company to Reserve Common Stock................................................................67
Section 12.08 Taxes on Conversions...........................................................................67
Section 12.09 Covenant as to Common Stock....................................................................68
Section 12.10 Cancellation of Converted Securities...........................................................68
Section 12.11 Provisions in Case of Consolidation, Merger or Sale of Assets..................................68
ARTICLE XIII
SINKING FUNDS
Section 13.01 Applicability of Article.......................................................................69
Section 13.02 Satisfaction of Sinking Fund Payments with Securities..........................................69
Section 13.03 Redemption of Securities for Sinking Fund......................................................69
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01 Exemption from Individual Liability............................................................70
ARTICLE XV
MISCELLANEOUS
Section 15.01 Counterparts...................................................................................70
iv
THIS INDENTURE is dated as of [__________ __, 2___], between COMMERCE
BANCORP, INC., a corporation duly organized and existing under the laws of the
State of New Jersey (herein called the "Company"), having its principal
executive office at 0000 Xxxxx 00 Xxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, and THE
BANK OF NEW YORK, a New York banking corporation, as trustee (herein called the
"Trustee")
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its
[unsecured,] [convertible and] unsubordinated debentures, notes or other
evidence of indebtedness to be issued in one or more series (hereinafter called
the "Securities") as hereinafter set forth, and to provide therefor the Company
has duly authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed by the
Company and by the Trustee, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings, assigned to them
in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the
term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation;
and
(d) 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.
Certain terms, used principally in Article Six, are defined in that
Article.
1
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote, 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person, and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Authenticating Agent" with respect to any series of Securities means
any person authorized by the Trustee to act on behalf of the Trustee to
authenticate Securities of such series pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper, in an official language of
the country of publication or in the English language, customarily published on
each Business Day whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Authorized Officer" means the Chairman of the Board, the Chief
Executive Officer, the President, any Vice Chairman of the Board, the Chief
Financial Officer, any Vice President, the Treasurer, the Secretary, the
Comptroller, any Assistant Comptroller, any Assistant Treasurer or any Assistant
Secretary of the Company.
"Bank" means (i) any institution organized under the laws of the United
States, any State of the United States, the District of Columbia, any territory
of the United States, Puerto Rico, Guam, American Samoa or the Virgin Islands
which (a) accepts deposits that the depositor has a legal right to withdraw on
demand, and (b) engages in the business of making commercial loans and (ii) any
trust company organized under any of the foregoing laws.
"Bearer Security" means any Security in the form established pursuant
to Section 2.02 which is payable to bearer.
"Board of Directors" means either the board of directors of the
Company, any duly authorized committee of that board or the Chairman, any Vice
Chairman, the President or any Vice President of the Company duly authorized by
the Board of Directors of the Company to take a specified action or make a
specified determination.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors of the Company and to be in full force and effect on the
date of such certification, and delivered to the appropriate Trustee.
"Business Day" means any day other than a Saturday or Sunday that is
neither a legal holiday nor a day on which banking institutions are authorized
or obligated by law or regulation to close in The City of New York or any day
other than a day on which the Corporate Trust Office of the Trustee is closed
for business.
2
"Commerce Bank" means Commerce Bank, N.A., a national banking
association..
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time after the execution and delivery of this instrument
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
"Common Stock" means any stock of any class of the Company that has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and that is not subject to redemption by the Company. Subject to the provisions
of Section 12.11, however, shares issuable on conversion of Securities shall
include only shares of the class designated as Common Stock of the Company as of
the date of this Indenture or shares of any class or classes resulting from any
reclassification or reclassifications thereof, which shares shall have no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which shares are not subject to redemption by the Company; provided,
however, that if at any time there shall be more than one such resulting class,
the shares of each such class then so issuable shall be substantially
proportionate to that number by which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor Person.
"Company Request" or "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its Chief Executive Officer, its President, a Vice Chairman, its Chief Financial
Officer or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Comptroller, an Assistant Comptroller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Constituent Bank" means a Subsidiary which is a Bank.
"Corporate Trust Office" means the corporate trust office of the
Trustee located in New York, New York, at which at any particular time its
corporate trust business shall be principally administered, which office, at the
date of the execution of this Agreement, is located at The Bank of New York, 000
Xxxxxxx Xxxxxx, Xxxxx 0X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust -
Administration
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" shall mean, with respect to the Securities for which the
Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, or another clearing
agency, or any successor registered as a clearing agency pursuant to Section 17A
of the Exchange Act or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to Section 2.04(d).
"Event of Default" has the meaning specified in Section 5.01.
3
"Exchange Date" has the meaning specified in Section 3.04.
"Global Security" or "Global Securities" means any Security or
Securities, as the case may be, in the form established pursuant to Section 2.02
evidencing all or part of a series of Securities, issued to the Depositary for
such series or its nominee, and registered in the name of such Depositary or
nominee.
"Holder", when used with respect to any Security, means a
Securityholder.
"Indebtedness" of any Person as of any date means, without duplication,
all indebtedness of such Person in respect of borrowed money, including all
interest, fees and expenses owed in connection therewith (whether the recourse
of the lender is to the whole of the assets of such Person or only to a portion
thereof), indebtedness evidenced by notes, debentures, bonds or other
instruments of indebtedness, obligations for the reimbursement of any obligor on
any letter of credit, banker's acceptance or similar credit transaction, or
obligations under capitalized leases and equipment leases.
"Indenture" means with respect to each series of Securities for which a
Person is acting as Trustee, this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities for which such
Person is Trustee established as contemplated by Section 3.01 exclusive,
however, of any provisions or terms which relate solely to other series of
Securities for which such Person is not Trustee, regardless of when such terms
or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as such Trustee,
was not a party.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an installment of interest on such
Security.
"Maturity", when used with respect to any Security, means the date on
which the principal or Maturity Consideration of such Security (or any
installment of principal or Maturity Consideration) becomes due and payable or
deliverable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Maturity Consideration" means securities, which may be issued by the
Company or another Person, or a combination of cash, such securities and/or
other property that may be delivered to Holders of Securities of any series to
satisfy the Company's obligations with regard to payment upon Maturity, or any
redemption or required repurchase or in connection with any exchange provisions,
or any interest payment.
"Officers' Certificate" means a certificate signed by two Authorized
Officers, one of whom must be the principal financial officer, and delivered to
the Trustee. Each such certificate shall contain the statements set forth in
Section 1.02.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be acceptable to the Trustee.
4
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Outstanding", when used with respect to a Security or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee
for such series or any Paying Agent in trust for the Holders of
such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii)such Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a protected purchaser (within the meaning
of Article 8 of the Uniform Commercial Code) in whose hands such
Securities are valid obligations of the Company, provided,
however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder, 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 5.02 and Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities which are registered in the Security Register in the
name of the Company, any obligor stated to be so obligated on
such Securities or any Affiliate of the Company or such obligor
which is listed as such on an Officers' Certificate delivered to
the Trustee for that series shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of
such other obligor. The Trustee shall be entitled to request and
rely upon an Officers' Certificate as conclusive evidence
regarding the ownership or pledge of Securities by the Company or
any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
5
"Paying Agent" means for any series any Person authorized by the
Company to pay or deliver the principal of (and premium, if any), Maturity
Consideration or interest on, any Securities of that series on behalf of the
Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
10.02, the principal of (and premium, if any), Maturity Consideration and
interest on the Securities of that series are payable or deliverable as
specified in accordance with Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Constituent Bank" means Commerce Bank or such other
Constituent Bank(s) of the Company that has total assets equal to 30% or more of
the Company's assets as may be designated from time to time, pursuant to a Board
Resolution and set forth in an Officers' Certificate, pursuant to the terms of
Section 3.01 hereof. If a Constituent Bank is designated as a Principal
Constituent Bank in connection with the Securities of any series, such Principal
Constituent Bank shall remain a Principal Constituent Bank until such time as
the Securities of such series are repaid.
"Principal Paying Agent" means the Paying Agent designated as such by
the Company pursuant to Section 3.01 of this Indenture.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price or Maturity Consideration specified in such Security
at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 2.01 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
"Responsible Officer", means, when used with respect to the Trustee, an
officer within the Corporate Trust Administration department of the Corporate
Trust Office who shall have direct responsibility for the administration of this
Indenture and, with respect to a particular corporate trust matter, any other
officer of such Trustee to whom such corporate trust matter is referred because
of his knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
6
"Securityholder" means, in the case of a Registered Security, the
Person in whose name the Security is registered in the Security Register and, in
the case of a Bearer Security (or any temporary Global Security in bearer form),
the bearer thereof and, when used with respect to any coupon, the bearer
thereof.
"Security Register", "Security Registrar" and "Co-Security Registrar"
have the respective meanings specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest (as
defined in Section 3.07) on the Securities of any issue means a date fixed by
the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security, or any
installment of principal, Maturity Consideration thereof or interest thereon,
means the date specified in such Security or a coupon representing such
installment of interest as the fixed date on which the principal or Maturity
Consideration of such Security, or such installment of principal, Maturity
Consideration or interest, is due and payable or deliverable.
"Subsidiary" means a Corporation more than 50% of the Voting Stock of
which is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries or by the Company and one or more other Subsidiaries.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which Securities are not traded on the applicable
securities exchange or in the applicable securities market.
"Trustee" means the Person named as "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to the securities of that series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, as in force at the date as
of which this instrument was executed, except as provided in Section 9.05.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"Vice President", when used with respect to the Company or a Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
Board of Directors, managers or trustees of such Corporation (irrespective of
whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
Section 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent
(including any covenants, compliance with which constitutes
7
a condition 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 that such action is authorized or permitted under
this Indenture and that all such conditions precedent (including any covenants,
compliance with which constitutes a condition precedent), if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 10.06) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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Section 1.04 Acts of Securityholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or
taken by Securityholders of any series may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent
duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Securityholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution
is by or on behalf of any legal entity other than an individual,
such certificate or affidavit shall also constitute sufficient
proof of the authority of the Person executing the same. The fact
and date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by
the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or
other depositary, wherever situated, if such certificate shall be
deemed by the Trustee to be satisfactory, showing that at the
date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Security, if such
certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect
of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding.
(e) The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal
amount and serial numbers of Bearer Securities held by the Person
so executing such instrument or writing and
9
the date of holding the same may also be proved in any other
manner which the Trustee deems sufficient; and the Trustee may in
any instance require further proof with respect to any of the
matters referred to in this Section.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof or the Holder of any
Predecessor Security, in respect of any action taken, suffered or
omitted by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such
Security.
(g) The Company may, but shall not be obligated to, set a record date
for purposes of determining the identity of Holders entitled to
vote or consent to any action by vote or consent authorized or
permitted under this Indenture, which record date shall be the
later of 10 days prior to the first solicitation of such consent
or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 7.01 of this Indenture prior to such
solicitation. If a record date is fixed, those persons who were
Holders of Securities at such record date (or their duly
designated proxies), and only those persons, shall be entitled to
take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to
be Holders after such record date. No such vote or consent shall
be valid or effective for more than 120 days after such record
date.
Section 1.05 Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Securityholders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee and received at its
Corporate Trust Office; or
(b) the Company by any Securityholder or the Trustee shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its
Secretary at the address of its principal office specified in the
first paragraph of this Indenture, or at any other address
previously furnished in writing to the Trustee by the Company.
Section 1.06 Notice to Securityholders; Waiver.
Where this Indenture provides for notice to Holders of any series of
Securities of any event:
(a) such notice shall be sufficiently given (unless otherwise herein,
or in such Security, expressly provided) if in writing and
mailed, first-class postage prepaid, to each
10
Holder of a Registered Security affected by such event, at his
address as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(b) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in The City of
New York and, if the Securities of such series are then listed on
any other stock exchange and such stock exchange shall so
require, in any other required city outside the United States or,
if not practicable, elsewhere on a Business Day at least twice,
the first such publication to be not earlier than the earliest
date, and not later than the latest date, prescribed for the
giving of such notice; it being understood that the Company shall
notify the Trustee of any of the foregoing requirements a
reasonable amount of time prior to the date on which such notice
must be given (but in no event less than five Business Days).
In case by reason of the suspension of regular mail service or by
reason of any other case it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice by publication
to Holders of Bearer Securities given as provided above.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
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. Such 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.
Section 1.07 Conflict with Trust Indenture Act.
If and to the extent that any provision hereof limits, qualifies or
conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of
the Trust Indenture Act through operation of Section 318(c) thereof, such
imposed duties shall control.
Section 1.08 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
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Section 1.09 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 1.12 Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflicts of
laws principles thereof. This Indenture is subject to the provisions of the TIA
that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
Section 1.13 Legal Holidays.
In any case where any Interest Payment Date, Stated Maturity or
Redemption Date of any Security, the last date on which Holder has the right to
convert his Securities or any date on which any Defaulted Interest is proposed
to be paid or delivered shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of the Securities or this Indenture)
payment or delivery of the principal of (and premium, if any), Maturity
Consideration or interest on any Securities or conversion of the Securities need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day, or such other Business Day as may be specified in an
Officers' Certificate delivered to the appropriate Trustee pursuant to Section
3.01 hereof, at such Place of Payment with the same force and effect as if made
on the Interest Payment Date, Stated Maturity or Redemption Date or on the date
on which Defaulted Interest is proposed to be paid or delivered, and, if such
payment or delivery is made, no interest shall accrue on such payment or
delivery for the period from and after any such Interest Payment Date, Stated
Maturity, Redemption Date, the date on which Defaulted Interest is proposed to
be paid or delivered, or on such last day for conversion, as the case may be.
Section 1.14 Waiver of Trial by Jury.
The Company, the Trustee and the Holders hereby irrevocably and
unconditionally waive the right to trial by jury in connection with any claim
arising out of or relating to the Securities and under this Indenture.
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ARTICLE II
SECURITY FORMS
Section 2.01 Forms Generally.
The Securities of each series shall be in such form as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary and delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 3.03 for the authentication and
delivery of such Securities. If temporary Securities of any series are issued as
Global Securities as permitted by Section 3.04, the form thereof also shall be
established as provided in the preceding sentence.
The Trustees' certificates of authentication shall be in substantially
the form set forth in this Article.
Unless otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 3.01,
the Securities of a series shall be issuable solely in bearer form, or in both
registered and bearer form. Unless otherwise specified as contemplated by
Section 3.01, Securities in bearer form shall have interest coupons attached.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on a steel engraved border or 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 2.02 Form of Securities.
Each Security shall be in one of the forms approved from time to time
by or pursuant to a Board Resolution. Upon or prior to the delivery of a
Security in any such form to the Trustee for authentication, the Company shall
deliver to the Trustee the following:
(a) the Board Resolution by or pursuant to which such form of
Security has been approved, certified by the Secretary or an
Assistant Secretary of the Company;
(b) the Officers' Certificate required by Section 3.01 of this
Indenture;
(c) the Company Order required by Section 3.03 of this Indenture; and
(d) the Opinion of Counsel required by Section 3.03 of this
Indenture.
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Section 2.03 Form of Trustee's Certificate of Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
The Trustee's Certificate of Authentication shall be in substantially the
following Form:
This is one of the Securities of the series designated herein referred
to in the within mentioned Indenture.
THE BANK OF NEW YORK, not in its individual capacity
but solely as Trustee
By
------------------------------------------
Authorized Officer
Date _____________________
ARTICLE III
THE SECURITIES
Section 3.01 Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued up
to the aggregate principal amount of Securities from time to time authorized by
or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of
each series issued under this Indenture shall in all respects be equally and
ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time or times of
the authentication and delivery or Maturity of the Securities of such series.
There shall be established in or pursuant to a Board Resolution, and set forth
in an Officers' Certificate, reasonably acceptable to the Trustee, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(a) the title of the Securities, including CUSIP numbers, of the
series (which shall distinguish the Securities of the series from
all other Securities);
(b) the Trustee for the Securities of the series (which Trustee shall
be the Trustee named herein or a successor Trustee appointed in
accordance with the terms of this Indenture);
(c) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to this Article Three or
Sections 9.06 or 11.07);
(d) the date or dates on which the principal or Maturity
Consideration of the Securities of the series is payable or
deliverable;
14
(e) the rate or rates, or the method to be used in ascertaining the
rate or rates, at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest
shall be payable or deliverable and the Regular Record Date for
the interest payable or deliverable on any Interest Payment Date;
(f) the place or places where, subject to the provisions of Section
10.02, the principal of (and premium, if any), Maturity
Consideration and interest, if any, on Securities of the series
shall be payable or deliverable;
(g) the office or offices or agency where the Registered Securities
may be presented for registration of transfer or exchange and the
place or places where notices and demands to or upon the Company
in respect of the Securities of such series may be made;
(h) the period or periods within which, the price, prices or Maturity
Consideration at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at
the option of the Company;
(i) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of such series
shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(j) the denominations in which Securities of the series shall be
issuable;
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be
payable or deliverable upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.02;
(l) if the amount of payments of principal of (and premium, if any),
Maturity Consideration or interest, if any, on the Securities of
the series may be determined with reference to an index based on
a coin or currency other than that in which the Securities are
stated to be payable or deliverable, the method or methods by
which such amounts shall be determined;
(m) the extent to which any of the Securities will be issuable as a
temporary or permanent Global Security and, in such case, the
identity of the Depositary for such series and the manner in
which any interest payable or deliverable on a temporary or
permanent Global Security shall be paid or delivered;
(n) any addition to or modification or deletion of any Event of
Default or covenants of the Company with respect to the
Securities of such series whether or not such Events of Default
or covenants are consistent with the Events of Default or
covenants set forth herein;
(o) any covenant solely for the benefit of the Securities of the
series;
15
(p) the applicability of Section 4.03 of this Indenture to the
Securities of the series;
(q) the appointment of any Paying Agent or Agents for the Securities
of such series;
(r) whether, and the terms and conditions relating to when the
Company may satisfy all or part of its obligations with regard to
payment or delivery upon Maturity, or any redemption or required
repurchase or in connection with any exchange provisions, or any
interest payment, by paying or delivering Maturity Consideration
to the Holders of the Securities;
(s) the terms and conditions, if any, upon which Securities of the
Series will be convertible into shares of Common Stock; and
(t) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to such
Board Resolution and set forth in such Officers' Certificate or in any such
indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee for such series at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
Section 3.02 Denominations.
The Securities of each series shall be issuable in such form and
denominations as shall be specified as contemplated by Section 3.01. In the
absence of any specification with respect to the Securities of any series, the
Registered Securities of such series shall be issuable only as Securities
without coupons in minimum denominations of $[_____] and any integral multiple
of $[_____] in excess thereof and the Bearer Securities of each series, if any,
shall be issuable with coupons and in denominations of $[______] and $[_______].
Section 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President, one of its
Vice Chairmen or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any or all of these officers on the Securities may be manual or
facsimile. Coupons shall bear the facsimile signature of the Company's Chairman
of the Board, its Chief Executive Officer, its President, a Vice Chairman of the
Board, its Chief Financial Officer, one of its Executive Vice Presidents or the
Treasurer.
16
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities and such other documents as the Trustee may
reasonably request, and such Trustee in accordance with the Company Order and
subject to the provisions hereof shall authenticate and deliver such Securities
as provided in this Indenture and not otherwise.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon, an Opinion of Counsel complying with Section
1.02 and stating that:
(a) the form of such securities has been established in conformity
with the provisions of this Indenture;
(b) the terms of such Securities have been established in conformity
with the provisions of this Indenture;
(c) all conditions precedent to the authentication and delivery of
such Securities have been complied with and that such Securities,
when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity; and
(d) that all laws and requirements in respect of the execution and
delivery by the Company of the Securities have been complied with
and that authentication and delivery of the Securities by the
Trustee will not violate the terms of the Indenture; and
(e) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if
the issuance of such Securities pursuant to this Indenture will affect such
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to such
Trustee.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or vice presidents shall determine that
such action would expose the Trustee to personal liability to existing Holders.
Each Registered Security shall be dated the date of its authentication;
and unless otherwise specified as contemplated by Section 3.01, each Bearer
Security and any temporary Global Security referred to in Section 3.04 shall be
dated as of the date of issuance of such Security.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of
17
this Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued or sold by the Company, for all
purposes of this Indenture, such Security shall be deemed never to have been
authenticated and delivered under this Indenture and shall never be entitled to
the benefits of this Indenture
Section 3.04 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee for such series shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued in registered form or, if authorized, in bearer form with one or more
coupons or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities. In the case of
any series which may be issuable as Bearer Securities, such temporary Securities
may be Global Securities, representing such of the Outstanding Securities of
such series as shall be specified therein.
Except in the case of temporary Global Securities, each of which shall
be exchanged in accordance with the provisions of the following paragraph, if
temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of such
series of authorized denominations provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 3.03. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
Without unnecessary delay but in any event not later than five Business
Days prior to the date specified in, or determined pursuant to the terms of, any
such temporary Global Security as the "Exchange Date" (the "Exchange Date"), the
Company shall deliver to the Trustee, or, if the Trustee appoints an
Authenticating Agent pursuant to Section 6.14, to any such Authenticating Agent,
definitive Securities in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. Unless
otherwise specified as contemplated by Section 3.01, such definitive Securities
shall be in the form of Bearer Securities or Registered Securities, or any
combination thereof, as may be specified by the Company to the Trustee or any
such Authenticating Agent, as may be appropriate. On or after the Exchange Date,
such temporary Global Security shall be surrendered by the Depositary to the
Trustee or
18
any such Authenticating Agent, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge to the Depositary and the Trustee or any such Authenticating
Agent shall authenticate and deliver, in exchange for each portion of such
temporary Global Securities, an equal aggregate principal amount of definitive
Securities of the same series, of authorized denominations and of like tenor as
the portion of such temporary Global Security to be exchanged, which, except as
otherwise specified as contemplated by Section 3.01, shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof in a writing delivered to the
Trustee; provided, however, that, unless otherwise specified in such temporary
Global Security, upon such presentation by the Depositary, such temporary Global
Security is accompanied by a certificate dated the Exchange Date or a subsequent
date; and provided, further, that a definitive Bearer Security shall be
delivered in exchange for a portion of a temporary Global Security only in
compliance with the conditions set forth in Section 3.03.
Upon any exchange of a portion of any such temporary Global Security,
the Trustee or any such Authenticating Agent or the Depositary, as the case may
be, shall indicate upon such temporary Global Security, the amount of such
exchange to reflect the reduction of the principal amount evidenced thereby,
whereupon its remaining principal amount shall be reduced for all purposes by
the amount so exchanged. Until so exchanged in full, such temporary Global
Security shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series authenticated and delivered
hereunder.
Section 3.05 Registration, Registration of Transfer and Exchange.
With respect to Registered Securities, the Company shall keep or cause
to be kept at the office of the Security Registrar designated pursuant to this
Section 3.05 or Section 10.02 a register (being the combined register of the
Security Registrar and all Co-Security Registrars and herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and the registration of transfers of Securities and
the Company shall appoint a Security Registrar, and any Co-Security Registrar as
may be appropriate, to keep the Security Register. The Trustee is hereby
initially appointed Security Registrar with respect to the series of Securities
for which it is acting as Trustee. Such Security Register shall be in written
form or in any other form capable of being converted into written form within a
reasonable time. At all reasonable times the information contained in such
Security Register shall be available for inspection by the Trustee at the office
of the Security Registrar. In the event that any Registered Securities issued
hereunder have The City of New York as a Place of Payment, the Company shall
appoint either a Security Registrar or Co-Security Registrar located in The City
of New York.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company in a Place of Payment, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and Stated Maturity.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denominations and of a like
00
xxxxxxxxx xxxxxxxxx xxxxxx, xxxx xxxxxxxxx of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Securityholder making the exchange is entitled to receive.
Registered Securities may not be exchanged for Bearer Securities.
Bearer Securities may not be exchanged for Bearer Securities of other authorized
denominations.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default appertaining thereto. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment from the
Company. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Paying Agent in exchange for a Registered Security of
the same series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Security Registrar or the
Co-Security Registrar for the series) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the Security
Registrar or the Co-Security Registrar for the series duly executed, by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Securities) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
20
None of the Company, the Security Registrar nor any Co-Security
Registrar shall be required (i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Securities of
that series selected for redemption under Section 11.03 and ending at the close
of business on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption of
Registered Securities of such series so selected for redemption, or (B) if
Securities of the series are issuable as Bearer Securities, the day of the first
publication of the relevant notice of redemption or, if Securities of the series
are also issuable as Registered Securities and there is no publication, the
mailing of the relevant notice of redemption, or (ii) to register the transfer
or exchange of any Securities so selected for redemption in whole or in part.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security or Security with a mutilated coupon,
surrendered to the Trustee or the Security Registrar, or if the Company, the
Trustee and the Security Registrar receive evidence to their satisfaction of the
destruction, loss or theft of any Security or coupon, and (ii) there is
delivered to the Company, the Trustee and the Security Registrar such Security
or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Company, the Trustee or the Security Registrar that
such Security has been acquired by a protected purchaser (within the meaning of
Article 8 of the Uniform Commercial Code), the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
Stated Maturity and of like tenor and principal amount, bearing a number not
contemporaneously outstanding and, if applicable, with coupons corresponding to
the coupons appertaining thereto.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or deliver
the Maturity Consideration deliverable thereon; provided, however, that payment
of principal of (and premium, if any), Maturity Consideration and any interest
on Bearer Securities shall be payable only at an office or agency located in the
United States, and, in the case of interest, unless otherwise specified as
contemplated by Section 3.01, only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of such Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or in
exchange for a Security with a destroyed, lost or stolen coupon, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupons shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any, duly issued hereunder.
21
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 3.07 Payment of Interest; Interest Rights Preserved.
Unless otherwise provided, as contemplated by Section 3.01, interest on
any Registered Security which is payable or deliverable, and is punctually paid,
delivered or duly provided for, on any Interest Payment Date shall unless
otherwise provided in such Security be paid or delivered to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business of the Regular Record Date for such interest, provided,
however, that in the case of a Registered Security originally issued between a
Regular Record Date and the Interest Payment Date or on an Interest Payment Date
relating to such Regular Record Date, interest for the period beginning on the
date of issue and ending on such Interest Payment Date shall be paid or
delivered on the next succeeding Interest Payment Date to the Person in whose
name such Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date with respect to
such succeeding Interest Payment Date. Unless otherwise specified as
contemplated by Section 3.01, in case a Bearer Security of any series is
surrendered in exchange for a Registered Security of such series after the close
of business (at an office or agency referred to in Section 3.05) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable or deliverable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable or deliverable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Any interest on any Registered Security of any series which is payable
or deliverable, but is not punctually paid, delivered or duly provided for, on
any Interest Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable or deliverable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may be
paid or delivered by the Company, at its election in each case, as provided in
clause (a) or (b) below:
(a) The Company may elect to make payment or delivery of any
Defaulted Interest to the Persons in whose names any such
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment or delivery of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid or delivered on each
Registered Security of such series and the date of the proposed
payment or delivery, and at the same time the Company shall
deposit with the Trustee an amount of money or other property
equal to the aggregate amount proposed to be paid or delivered in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment or delivery, such money or other property
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this clause.
Thereupon the Trustee shall fix a Special Record Date for the
payment
22
or delivery of such Defaulted Interest which shall be not more
than 15 days nor less than 10 days prior to the date of the
proposed payment or delivery and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment or
delivery. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment or delivery
of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment or delivery of such
Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid or
delivered to the Persons in whose names such Registered
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable or deliverable
pursuant to the following clause (b). In case a Bearer Security
of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security
of such series after the close of business at such office or
agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date of
payment or delivery of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such proposed
date for payment or delivery and Defaulted Interest will not be
payable or deliverable on such proposed date for payment or
delivery in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of this
Indenture.
(b) The Company may make payment or delivery of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Securities, with respect to which there
exists such default, may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment or delivery
pursuant to this Clause, such manner of payment shall be deemed
practicable by such Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security that is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security that Maturity of which is prior to such Interest Payment Date), if
Stated Maturity is on such Interest Payment Date, the interest shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security that is converted, the interest thereon shall not be payable if
Stated Maturity is after the date of conversion of such Security.
23
Section 3.08 Persons Deemed Owners.
Title to any Bearer Security, any coupons appertaining thereto and any
temporary Global Security in bearer form shall pass by delivery.
Prior to due presentment of a Security of any series for registration
of transfer of any Registered Security , the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of receiving payment
or delivery of principal of (and premium, if any), Maturity Consideration in
respect of, and (subject to Section 3.07) interest on such Security and for all
other purposes whatsoever, whether or not such Security is overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon, as the
case may be, as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 3.09 Cancellation.
All Securities and coupons surrendered for payment, registration of
transfer, exchange, conversion, repayment, redemption or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee. All Securities so delivered or surrendered directly
to the Trustee for any such purpose, shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture or such Securities. All canceled
Securities or coupons held by the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures and the Trustee shall deliver a
certificate of such disposition to the Company, if requested by the Company in
writing.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
Section 3.11 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers
24
printed on the Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and rights to receive payments thereon
and any right to receive additional amounts, as provided for in Section 10.04),
and each Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when:
(a) either
(1) all Securities theretofore authenticated and delivered (other
than (i) coupons appertaining to Bearer Securities surrendered
for exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived as
provided in Section 3.05, (ii) coupons appertaining to Bearer
Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in
Section 11.07, (iii) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06, and (iv) Securities for whose payment
money or, if applicable, such other property constituting
Maturity Consideration if determinable has theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such
trust, as provided in Section 10.03) have been delivered to the
Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the appropriate
Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii)are to be called for redemption within one year under
arrangements satisfactory to the appropriate Trustee for the
giving of notice of redemption by such Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with such Trustee, as trust
funds in trust for the purpose, an amount (said amount to be
immediately due and payable to the Holders) sufficient to pay
25
and discharge the entire indebtedness on such Securities and
coupons of the relevant series not theretofore delivered to such
Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be or, if applicable, such other
property constituting Maturity Consideration if determinable;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (2) of Clause (a) of
this Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive such satisfaction and discharge. The
Trustee may give notice to the Holders or Securities Outstanding of the
immediate availability of the amount referred to in clause (a) of this Section
4.01.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of the Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. The effectiveness of any such instrument shall be conditioned
upon receipt of such instruments from the Trustee.
Section 4.02 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all
money, property, U.S. Government Obligations and foreign government obligations
deposited with the Trustee pursuant to Sections 4.01 and 4.03 in respect of
Securities of a series shall be held in trust and applied by it, in accordance
with the provisions of such Securities, the coupons, if any, and this Indenture,
to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any), Maturity
Consideration and interest for whose payment such money has been deposited with
the Trustee; unless otherwise specified herein, such money need not be
segregated from other funds except to the extent required by law. All moneys
deposited with the Trustee pursuant to Section 4.01 (and held by it or the
Paying Agent) for the payment of Securities subsequently converted shall be
returned to the Company upon Company Request.
Section 4.03 Satisfaction, Discharge and Defeasance of Securities of Any Series.
If this Section 4.03 is specified, as contemplated by Section 3.01, to
be applicable to the Securities of any series, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the Securities of any
such series at the time Outstanding, and, upon Company Request, the Trustee for
the series, at the expense of the Company, shall execute proper
26
instruments supplied by the Company acknowledging satisfaction, discharge and
defeasance of such indebtedness, when:
(a) either
(1) with respect to all Securities of such series at the time
Outstanding, the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in trust
for the purpose an amount sufficient to pay and discharge each
installment of principal of (including any mandatory sinking fund
payments), premium, if any, and interest on, the Outstanding
Securities of such series on the dates such installments of
principal (and premium, if any), and interest are due or the
Stated Maturity or date of redemption of such series, if
applicable; or
(2) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
Section 3.01, to be applicable to the Securities of such series;
(b) no Event of Default or event (including such deposit) 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 as evidenced to such Trustee
in an Officers' Certificate delivered to such Trustee concurrently
with such deposit;
(c) if the Securities of such Series are then listed on the New York Stock
Exchange, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Company's exercise of its option
under this Section, by itself, would not cause such Securities to be
delisted;
(d) no Event of Default or event (including such deposit) 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 as evidenced to such Trustee
in an Officers' Certificate delivered to such Trustee concurrently
with such deposit;
(e) the Company shall have paid or caused to be paid all other sums
payable with respect to the Securities of such series at the time
outstanding;
(f) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(g) the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes solely
as a result of the Company's exercise of its option under this Section
4.03 and will be subject to Federal income tax on the same amount and
in the manner and at the same times as would have been the case if
such option had not been exercised, and, in the case of the Securities
of such
27
series being discharged, accompanied by a ruling to that effect
received from, or published by, the Internal Revenue Service;
(h) the Company shall have delivered to the Trustee for the series an
Officers' Certificate and an Opinion of Counsel, each stating that
such satisfaction, discharge and defeasance is authorized or permitted
by this Indenture and that all conditions precedent herein provided
for relating to the satisfaction, discharge and defeasance of the
entire indebtedness on all Securities of any such series at the time
Outstanding have been complied with; and
(i) the Company has delivered to the Trustee an Opinion of Counsel to the
effect that immediately following the deposit described in clause (1)
above neither the Company nor the Trust held by the Trustee shall be
an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940.
Any deposits with the Trustee for the series referred to in Sections
4.01 and 4.03(a)(1) above shall be irrevocable and shall be made under the terms
of an escrow trust agreement in form and substance reasonably satisfactory to
the Trustee. If any Securities of a series with respect to which a deposit has
been made pursuant to Sections 4.01 and 4.03(a)(1) at the time outstanding are
to be redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory sinking fund
requirement, the applicable escrow trust agreement shall provide therefor and
the Company shall make such arrangements as are satisfactory to the Trustee for
the series for the giving of notice of redemption by the Trustee for the series
in the name, and at the expense, of the Company. If the Securities of such
series are not to become due and payable at their Stated Maturity or upon call
for redemption within one year of the date of deposit, then the Company shall
give, promptly after the date of such deposit, notice of such deposit to the
Holders of Securities of such series.
Upon the satisfaction of the conditions set forth in this Section 4.03
with respect to all the Securities of any series at the time Outstanding, the
terms and conditions of such series, including the terms and conditions with
respect thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company (except as to any surviving rights of conversion or
registration of transfer or exchange and rights relating to mutilated,
destroyed, lost and stolen Securities pursuant to Section 3.06 of Securities of
such series expressly provided for herein or in the form of Security of such
series); provided, that the Company shall not be discharged from any payment
obligations in respect of Securities of such series which are deemed not to be
Outstanding under clause (iii) of the definition thereof if such obligations
continue to be valid obligations of the Company under applicable law; and
provided, further, that in the event a petition for relief under the Bankruptcy
Reform Act of 1978 or a successor statute is filed with respect to the Company
within 91 days after the deposit, the entire indebtedness on all Securities of
such series shall not be discharged and in such event the Trustee shall return
such deposited funds or obligations as it is then holding to the Company on
Company Request.
Section 4.04 Repayment to Company.
After the payment in full of the entire indebtedness of a series of
Securities with respect to which a deposit has been made with the Trustee
pursuant to Section 4.03, such Trustee and
28
any Paying Agent for such series shall upon Company Request promptly return to
the Company any funds held by them that are not required for the payment of the
principal of (and premium, if any), and interest on the Securities of such
series.
Section 4.05 Reinstatement.
If the Trustee is unable to apply any funds in accordance with Section
4.03 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 4.03 until such time as the Trustee is permitted to apply
all such funds in accordance with Section 4.03.
ARTICLE V
REMEDIES
Section 5.01 Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in the supplemental indenture under which such series of
Securities is issued or in the form of Security for such series:
(a) default in the payment or delivery of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(c) default in the delivery or payment of Maturity Consideration when
due; or
(d) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(e) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant
or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit
of series of Securities other than that series), and continuance
of such default or breach for a period of [60] days after there
has been given, for such -- series by registered or certified
mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of
29
that series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(f) an event of default, as defined in any mortgage, indenture
(including this Indenture), trust agreement or other instrument
securing, evidencing or providing for any indebtedness of the
Company or any Principal Constituent Bank as a result of which
indebtedness of the Company or such Principal Constituent Bank in
excess of $5,000,000 aggregate principal amount shall be or
become due and payable prior to the date on which the same would
otherwise become due and payable and such acceleration shall not
have been annulled or rescinded within 30 days of notice of such
acceleration to the Company or such Principal Constituent Bank;
or
(g) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any
Principal Constituent Bank in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any
Principal Constituent Bank or of any substantial part of its
property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or
(h) the commencement by the Company or any Principal Constituent Bank
of a voluntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by any of the foregoing to the entry
of a decree or order for relief in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding,
or the filing by any of the foregoing of a petition or answer or
consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by any of the foregoing to
the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or any
Principal Constituent Bank or of any substantial part of the
property of any, or the making by any of the foregoing of an
assignment for the benefit of creditors, or the admission by any
of the foregoing in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action
by the Company or any Principal Constituent Bank in furtherance
of any such action; or
(i) any other Event of Default provided with respect to Securities of
that series.
Section 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default specified in Section 5.01(a), (b), (c), (d),
(e), (f) or (i) with respect to any series of Securities for which there are
Securities Outstanding occurs and is continuing,
30
then, and in every such case, the Trustee or the Holders of not less than 25% in
principal amount or, if such Securities are not payable at Maturity for a fixed
principal amount, 25% of the aggregate issue price of the Outstanding Securities
of that series may declare the principal amount or Maturity Consideration (or,
if the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all of the Securities of that series to be immediately due and payable or
deliverable, by a notice in writing to the Company (and to the Trustee if given
by Securityholders), and upon any such declaration the same shall become
immediately due and payable or deliverable. If an Event of Default specified in
Section 5.01(g) or (h) with respect to any series of Securities for which there
are Securities Outstanding occurs, then, and in every such case, the principal
amount or Maturity Consideration (or, if the Securities of that series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) and all unpaid interest of all of the
Securities of that series shall be immediately due and payable or deliverable
without any declaration or other act on the part of the Trustee or any Holder of
any Security of such series.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money or other property due or deliverable has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount or, if such Securities are not payable at Maturity for a
fixed principal amount, the aggregate issue price of the Outstanding Securities
of that series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if:
(a) the Company has paid, or deposited with or delivered to the Trustee a
sum or other property sufficient to pay
(1) all overdue installments of interest on all Securities of such
series;
(2) the principal of (and premium, if any, on) or Maturity
Consideration of any Securities of that series which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor by the
terms of the Securities of such series,
(3) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest at the rate or rates
prescribed therefor by the terms of the Securities of such
series; and
(4) all sums paid or advanced by the Trustee hereunder, the Security
of any series Registrar, the Co-Security Registrar for such
series and any Paying Agent and the reasonable compensation,
expenses, disbursements and advances of any one of them and their
agents and counsel; and
(b) all Events of Defaults with respect to Securities of that series,
other than the non-payment of the principal of, or non-delivery of the
Maturity Consideration of, Securities of that series which have become
due solely by such declaration of acceleration, have been cured or
waived as provided in Section 5.13.
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No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(a) default is made in the payment of any installment of interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment or delivery of the principal of (or
premium, if any, on) or the delivery of the Maturity Consideration of
any Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay or deliver to it, for
the benefit of the Holder of any such Security, the whole amount or other
property then due and payable or deliverable on any such Security for principal
(and premium, if any), Maturity Consideration and interest on and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any), Maturity Consideration and on any
overdue installments of interest, at the rate or rates prescribed therefor by
the terms of any such Security, and, in addition thereto, such further amount as
shall be sufficient to cover the reasonable costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and any other amounts due the Trustee under
Section 6.07.
If the Company fails to pay or deliver such amounts and/or other
consideration forthwith upon such demand, such Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the
collection of the sums or other property so due and unpaid or not delivered, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys or other property adjudged or decreed to be payable or deliverable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as such Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 5.04 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, a judgment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal or Maturity
Consideration of the Securities shall then be due and payable or deliverable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any
32
demand on the Company for the payment of overdue principal (and premium, if
any), or delivery of the Maturity Consideration and interest) shall be entitled
and empowered (but shall have no duty), by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of principal (and
premium, if any), Maturity Consideration and interest owing and
unpaid or undelivered in respect of the Securities of each series
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of such Trustee (including
any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel
and any other amounts due the Trustee under Section 6.07) and of
the Securityholders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Securityholder to make such payments or deliveries to the Trustee and, in
the event that the Trustee shall consent to the making of such payments or
deliveries directly to the Securityholders, to pay to the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
Section 5.05 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
of any series or coupons, if any, appertaining thereto, may be prosecuted and
enforced by the Trustee without the possession of any of the Securities of such
series or coupons appertaining thereto or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and any other amounts due the Trustee under Section 6.07, be for the
ratable benefit of the Holders of the Securities of such series or coupons
appertaining thereto in respect of which such judgment has been recovered.
Section 5.06 Application of Money or Other Property Collected.
Any money or other property collected by the Trustee with respect to a
series of Securities pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money or other property on account of principal (or
premium, if any), Maturity Consideration or interest upon presentation of the
Securities of such series or coupons appertaining thereto, if any, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
33
FIRST: To the payment of all amounts due such Trustee under Section
6.07.
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of such series and coupons for principal of (and premium, if any),
Maturity Consideration and interest, respectively.
THIRD: The balance if any, to the Company.
Section 5.07 Limitation on Suits.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of
that series;
(b) the Holders of not less than 25% in principal amount or, if such
Securities are not payable at Maturity for a fixed principal
amount, the aggregate issue price of the Outstanding Securities
of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) such Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of
a majority in principal amount or, if such Securities are not
payable at Maturity for a fixed principal amount, the aggregate
issue price of the Outstanding Securities of that series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or Holders of any other
series, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of Holders
of Securities of such series.
Section 5.08 Unconditional Right of Securityholders to Receive Principal,
Premium, Maturity Consideration and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment or delivery of the principal of (and premium,
if any), Maturity Consideration and (subject to Section 3.07)
34
interest on such Security or payment of such coupon on the respective Stated
Maturity or Maturities expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to convert such Security in accordance
with Article 12 and, subject to Section 5.07, to institute suit for the
enforcement of such payment and right to convert and such rights shall not be
impaired without the consent of such Holder.
Section 5.09 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
Section 5.12 Control by Holders.
The Holders of not less than a majority in principal amount, or if such
Securities are not payable at Maturity for a fixed principal amount, the
aggregate issue price of the Outstanding Securities of any series, shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on such Trustee, with respect to the Securities of such series; provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by such
Trustee which is not inconsistent with such direction,
35
(c) such direction is not unduly prejudicial to the rights of Holders
of such series not taking part in such direction, and
(d) subject to the provisions of Section 6.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee,
in good faith, shall by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve
personal liability.
Section 5.13 Waiver of Past Defaults.
Subject to Section 5.02, the Holders of not less than a majority in
principal amount, or if such Securities are not payable at Maturity for a fixed
principal amount, the aggregate issue price of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive
any past default hereunder with respect to such series and its consequences,
except a default not theretofor cured,
(a) in the payment or delivery of the principal of (or premium, if
any), Maturity Consideration or interest on any Security of such
series, or
(b) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Securities of such series under this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding in the aggregate more than
10% in principal amount, or if such Securities are not payable at Maturity for a
fixed principal amount, the aggregate issue price of the Outstanding Securities
of any series, or to any suit instituted by any Holder of Securities or coupons
for the enforcement of the payment of the principal of (or premium, if any),
Maturity Consideration or interest on any Security or payment of any coupon on
or after the Stated Maturity or Maturities expressed in such Security or coupon
(or, in the case of redemption, on or after the Redemption Date).
36
Section 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the exercise of any power
herein granted to the Trustee, but will suffer and permit the exercise of every
such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect
to any series of Securities:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and
only with respect to series of Securities as to which it is
Trustee, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; 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 Trustee shall be under a duty to examine
the same to determine whether or not on their face they
conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing as to
a series of Securities as to which it is Trustee, the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except
that:
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
37
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a
majority in principal amount or, if such Securities are not
payable at Maturity for a fixed principal amount, the
aggregate issue price of the Outstanding Securities of any
series, relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such
series.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 6.02 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder actually
known by a Responsible Officer of the Trustee with respect to the Securities of
any series, the Trustee shall transmit by mail to all Holders of Securities of
such series, as their names and addresses appear in the Security Register,
notice of such default hereunder, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any), Maturity Consideration or interest on
any Security of such series, or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders of Securities of such series; and provided, further,
that in the case of any default of the character specified in Section 5.01(e)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" with respect to Securities of any series, means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
Section 6.03 Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
38
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically
prescribed), may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent (including
Paying Agents) or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
39
(i) the Trustee shall not be deemed to have notice or knowledge 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;
(j) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder; and
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be
signed by any person authorized to sign an Officers' Certificate,
including any person specified as so authorized in any such
certificate previously delivered and not superseded.
Section 6.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof. The Trustee
shall not be responsible for the use or application of any monies received by
any Paying Agent other than the Trustee.
Section 6.05 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, the Security
Registrar, any Co-Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar, Co-Registrar or such other agent.
Section 6.06 Money or Other Property Held in Trust.
Subject to Section 10.03, money or other property held by the Trustee
or any Paying Agent in trust hereunder need not be segregated from other funds
or other property except to the extent required by law. Neither the Trustee nor
any Paying Agent shall be under any liability for interest on any money or other
property received by it hereunder except as otherwise agreed in writing with the
Company.
Section 6.07 Compensation and Reimbursement.
The Company agrees
(a) to pay each of the Trustee, any Co-Trustee, the Security
Registrar, any Co-Security Registrar, the Authenticating Agent,
and any Paying Agent, as the case may be, from time to time such
compensation as shall be agreed in writing between the Company
and each of them (as applicable) for all services rendered by
them hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
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(b) to pay to or to reimburse each of the Trustee, any Co-Trustee,
the Security Registrar, any Co-Security Registrar, the
Authenticating Agent, and any Paying Agent, as the case may be,
upon their request for all reasonable expenses, disbursements and
advances incurred or made by any one of them in accordance with
any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of their agents
and counsel), except any such expense, disbursement or advance as
may be attributable to their negligence or bad faith;
(c) to indemnify each of the Trustee, any Co-Trustee, the Security
Registrar, any Co-Security Registrar, the Authenticating Agent,
and any Paying Agent, and any predecessor of each of them, as the
case may be, for, and to hold each of them harmless against, any
and all loss, liability, damage, claim or expense, including
taxes (other than taxes based on the income of each of them)
incurred without negligence or bad faith on the part of such
entity, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending themselves against any claim
(whether asserted by the Company, a Holder or any other Person)
or liability in connection with the exercise or performance of
any of their powers or duties hereunder; and
(d) as security for the performance of the obligations of the Company
pursuant to this Section 6.07, the Company and the Holders agree
that the Trustee for the Securities of any series shall have a
lien prior to the Securities of all such series upon all property
and funds held or collected by the Trustee as such.
The obligations of the Company under this Section shall survive the
resignation or removal of the Trustee and satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.01(g) or Section 5.01(h), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
Section 6.08 Disqualification; Conflicting Interests.
If the Trustee for the Securities of any series issued hereunder has or
shall acquire any "conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
Nothing herein shall prevent the Trustee from filing with the
Securities and Exchange Commission the application referred to in the second to
last paragraph of Section 310(b) of the Trust Indenture Act.
Section 6.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to each series of
Securities hereunder which shall at all times be either
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(a) a Corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of
Columbia, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by federal,
state or District of Columbia authority; or
(b) a Corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the
Commission, authorized under such laws to exercise corporate
trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees, in either
case having a combined capital and surplus of at least
$50,000,000.
If such Corporation or national banking association 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 or national
banking association shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. Neither the
Company nor any person directly or indirectly controlling, controlled by, or
under common control with the Company shall serve as trustee for the Securities
of any series issued hereunder. If at any time the Trustee with respect to any
series of Securities shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
(b) The Trustee may resign with respect to any series of Securities
at any time by giving written notice thereof to the Company. If
an instrument of acceptance by a successor Trustee, required by
Section 6.11, shall not have been delivered to the resigning
Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition, at the expense
of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of
such series.
(c) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered
to the Trustee within 30 days after the giving of such notice of
removal, the Trustee being removed may petition, at the expense
of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities
of such series
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act with respect to any series of Securities
after written request therefor by the Company or by any
Securityholder who has been a bona fide Holder of a Security
of any series for at least six months; or
(2) the Trustee shall cease to be eligible under Section 6.09
with respect to any series of Securities and shall fail to
resign after written request therefor by the Company or by
any Holder of Securities of such series; or
(3) 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 of the Trustee or of its property
shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Securityholder who has been a bona fide Holder of a Security 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 with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee with
respect to any series of Securities for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all
of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series)
and shall comply with the applicable requirements of Section
6.11. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee with respect to such series, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company with
respect to such series. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner
hereinafter provided, any Securityholder who has been a bona fide
Holder of a Security 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 appointment of a
successor Trustee with respect to the Securities of such series.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect
to the Securities of any series by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders of
Registered Securities of such series as their names and addresses
appear in the Security Register and, if Securities of such series
are issuable as Bearer Securities, by publishing notice of such
event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the
name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to any series of Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee or Trustees an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee or Trustees shall become
effective with respect to all or any such series as to which it
is resigning as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee or
Trustees with respect to all or any such series; but, on the
request of the Company or the successor Trustee, such retiring
Trustee or Trustees shall, upon payment of its charges and all
amounts owing under Section 6.07, execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers, and trusts of the retiring Trustee or Trustees; and shall
duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee or Trustees
hereunder with respect to all or any such series.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same
trust and that each
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such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall
be responsible for any notice given to, or received by, or any
act or failure to act on the part of any other Trustee hereunder,
and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such
retiring Trustee shall with respect to the Securities of that or
those series to which the appointment of such successor Trustee
relates have no further responsibility for the exercise of rights
and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture, and each such
successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee, to the extent contemplated by
such supplemental indenture, all property and money held by such
retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of
this Section, as the case may be.
(d) No successor Trustee with respect to a series of Securities shall
accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible with respect to
such series under this Article.
Section 6.12 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 or national banking
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or national banking association
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 or national banking association shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities
Section 6.13 Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act
with respect to each series of Securities for which it is Trustee.
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Section 6.14 Appointment of Authenticating Agent.
At any time when any of the Securities of any series remain Outstanding
the Trustee may appoint an Authenticating Agent or Agents with respect to any
such series of Securities, which may include any Affiliate of the Company. Such
Authenticating Agent or Agents, at the option of the Trustee, shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer, partial conversion or
partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by a Trustee or a Trustee's certificate of
authentication or the delivery of Securities to the Trustee for authentication,
such reference shall be deemed to include authentication and delivery on behalf
of a Trustee by an Authenticating Agent, a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent, and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent
and delivery of Securities to the Authenticating Agent on behalf of the Trustee.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation or national banking association organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus as most recently reported or
determined by it sufficient under the laws of any jurisdiction under which it is
organized and in which it is doing business to conduct a trust business, and
which is otherwise authorized under such laws to conduct such business and is
subject to supervision or examination by federal or state authority.
Notwithstanding the foregoing, an Authenticating Agent located outside the
United States may be appointed by the Trustee if previously approved in writing
by the Company and if such Authenticating Agent has a combined capital and
surplus as most recently reported or determined by it sufficient under the laws
of any jurisdiction under which it is organized and in which it is doing
business to conduct a trust business. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any Corporation or national banking association into which an
Authenticating Agent may be merged or converted or with which it may be
consolidated, or any Corporation or national banking association resulting from
any merger, conversion or consolidation to which such Authenticating Agent shall
be a party, or any Corporation or national banking association succeeding to all
or substantially all the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
such Corporation or national banking association shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of any Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time (and upon
request by the Company shall) terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor
46
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The provisions of Sections 3.08, 6.04, 6.05 and 6.07 shall be
applicable to each Authenticating Agent.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series covered by such appointment may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities of the series provided for under the
within-mentioned Indenture.
[ ________________________], not in its individual
capacity but solely as Authenticating Agent on behalf of [Trustee]
By
-----------------------------------------
Authorized Officer
Date: _________________
Section 6.15 Trustee Not Fiduciary for Holders of Senior Indebtedness
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
or otherwise. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee for
each series
(a) semiannually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require,
containing the names and addresses of the Holders of Registered
Securities as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Company of any such request, a list
of similar form and content as of the date not more than 15 days
prior to the time such list is requested to be furnished,
except that no such lists need be furnished so long as the Trustee is in
possession thereof by reason of its acting as Security Registrar for such
series.
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Section 7.02 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section
7.01 and the names and addresses of Holders of Securities
received by the Trustee in its capacity as the Security Registrar
or Co-Security Registrar, if so acting. The Trustee may destroy
any list furnished to it as provided in Section 7.01 upon receipt
of a new list so furnished.
(b) If three or more Holders of Securities of any series (herein
referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant
has owned a Security of such series for a period of at least six
months preceding the date of such application, and such
application states that the applicants desire to communicate with
other Holders of Securities of such series or with the Holders of
all Securities with respect to their rights under this Indenture
or under such Securities and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after
the receipt of such application, at its election, either
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section
7.02(a); or
(2) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as
the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in
accordance with Section 7.02(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or all Holders of Securities,
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.02(a), a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after
48
a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interest of the Holders of Securities of
such series or all Securities, as the case may be, or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders of Securities with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise, the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information
as to the names and addresses of the Holders of Securities in
accordance with Section 7.02(b), regardless of the source from
which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material
pursuant to a request made under Section 7.02 (b).
Section 7.03 Reports by Trustee.
(a) The term "reporting date", as used in this Section, shall be [ ]
of each year, commencing with the later of [ ] or the first [ ]
after the first issuance of Securities of a series for which the
Trustee is acting as Trustee pursuant to this Indenture. Within
[60] days after the reporting date in each year, the Trustee
shall transmit by mail to all Holders of Registered Securities as
provided in Section 313(c) of the Trust Indenture Act, as their
names and addresses appear in the Security Register, a brief
report dated as of such reporting date if required by Section
313(a) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify
the Trustee when the Securities are listed on any stock exchange
and of any delisting thereof.
Section 7.04 Reports by Company.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if the Company
is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of a
security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and
regulations;
49
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(c) transmit by mail to all Holders of Securities, as their names and
addresses appear in the Security Register, within 30 days after
the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to paragraphs (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time
by the Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 8.01 Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(a) The corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer or which leases the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment or delivery of the principal of (and
premium, if any), Maturity Consideration and interest on
(including all additional amounts, if any, payable pursuant to
Section 10.04) all the Securities, conversion rights in
accordance with Section 12.11 and the performance of every
covenant of this Indenture on the part of the Company to be
performed or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and
be continuing; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance or transfer and such supplemental indenture
comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied
with.
50
provided, that, the provisions of this Section 8.01 may be changed as to any
series of Securities if and to the extent provided in an Officer's Certificate
delivered pursuant to Section 3.01 establishing the terms of such series of
Securities.
Section 8.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein. In the event of any such
conveyance or transfer, the Company as the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and may be
dissolved, wound up and liquidated at any time thereafter.
Such successor corporation may cause to be signed, and may issue either
in its own name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such successor corporation
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication pursuant to such
provisions and any Securities which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee on its behalf for the purpose
pursuant to such provisions. 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 case of any such consolidation, merger, sale or conveyance, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Securityholders.
Without notice to or the consent of any Holder of any Security or
coupon, the Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another corporation to the Company,
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
51
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely
for the benefit of such series), or to surrender any right or
power herein conferred upon the Company; or to add any additional
Events of Default with respect to all or any series of the
Securities (and, if such Event of Default is applicable to less
than all the series of Securities, specifying the series to which
such Event of Default is applicable) for the benefit of the
Holders of all or any series of the Securities (and if such
Events of Default are to be for the benefit of less that all
series of Securities stating that such Events of default are
expressly being included solely for the benefit of such series);
provided, however, that in respect of any such additional Events
of Default, such supplemental indenture may provide for a
particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon
such default or may limit the right of the Holders of a majority
in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to
waive such default; or
(c) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment
of principal of (or premium, if any), Maturity Consideration or
any interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit the issuance of
Securities in uncertificated form, provided any such action shall
not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or
(d) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental
indenture which is adversely affected by such change in or
elimination of such provision; or
(e) to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee; or
(f) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(g) 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 the provisions of
this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11(b); or
52
(h) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(i) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Section 4.01 and 4.03; provided in each case that any such action
shall not adversely affect the interests of Holders of Securities
of such series and any related coupons or any other series of
Securities in any material respect; or
(j) to provide for conversion rights of the Holders of Securities of
any Series to enable such Holders to convert such Securities into
other securities of the Company.
Any supplemental indenture authorized by the provisions of this Section 9.01 may
be executed by the Company 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 9.02.
Section 9.02 Supplemental Indentures with Consent of Securityholders.
With the consent of the Holders of not less than a majority in principal amount
or, if such Securities are not payable at Maturity for a fixed principal amount,
a majority of the aggregate issue price of the Outstanding Securities of all
series affected by such supplemental indenture or indentures (acting as one
class), by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of each such series and any related coupons under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holders of each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or the Stated
Maturity of any installment of principal of or interest (or
premium, if any) or any Maturity Consideration on any Outstanding
Security, or reduce the principal amount or Maturity
Consideration thereof (or premium, if any, thereon) or the rate
of interest thereon or change the obligation of the Company to
pay additional amounts pursuant to Section 10.04 (except as
contemplated by Section 8.01(a) and permitted by Section 9.01),
or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 5.02, or change the method of calculating interest
thereon or to any Place of Payment where, or the coin or currency
unit or other property in which, any Outstanding Security (or
premium, if any, thereon) or the interest thereon is payable or
deliverable, or impair the right to institute suit for the
enforcement of any such payment or delivery on or after the
Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date) or adversely affect the right to
convert any Security as provided in Article 12; or
(b) reduce the percentage in principal amount or issue price of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such
53
supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture; or
(c) modify any of the provisions of this Section, Section 5.13 or
Section 10.07, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that
this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 10.07 or the
deletion of this proviso, in accordance with the requirements of
Sections 6.11(b) and 9.01(h); or
(d) change any obligations of the Company to maintain an office or
agency in the places and for the purposes specified in Section
10.02.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the right under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
in addition to the documents required by Section 1.02, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
and complies with this Indenture and has been duly authorized, executed and
delivered and is enforceable in accordance with its terms. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects such Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
54
Section 9.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Company, bear a notation in form approved by the Company as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by such Trustee in
exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
Section 10.01 Payment of Principal, Premium, if any, the Maturity Consideration
and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or deliver the principal of (and
premium, if any), Maturity Consideration and interest (if any) on the Securities
of such series and any additional amounts described in Section 10.04 in
accordance with the terms of the Securities of such series, any coupons
appertaining thereto and this Indenture.
Section 10.02 Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for any series of Securities
an office or agency where Securities of that series may be presented or
surrendered for payment or delivery of Maturity Consideration, where Securities
of that series may be surrendered for registration of transfer or exchange,
where Securities may be surrendered for conversion and where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and of any change in the location, of such office or
agency. If Securities of a series may be issuable as Bearer Securities, the
Company will maintain an office or agency where any Securities of that series
may be presented or surrendered for payment (A) in the Borough of Manhattan, The
City of New York, and (B) where any Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be surrendered
for exchange and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the
55
Corporate Trust Office of such Trustee, except that the Bearer Securities of
that series and the related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Bearer Securities of
that series pursuant to Section 10.04) at the place specified for the purpose as
contemplated by Section 3.01, and the Company hereby appoints such Trustee as
its agent to receive all such presentations, surrenders, notices and demands
(other than those with respect to the Bearer Securities). Notwithstanding any
other provisions, to the contrary, the Company at its option may make payment of
principal (and premium if any), and interest with respect to Registered
Securities by check mailed to the address of the Person entitled thereto, as
such address appears on the registry books of the Company.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes specified above in this Section and
may from time to time rescind such designations.
Section 10.03 Money or Other Property for Securities Payments and Deliveries to
Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any), Maturity Consideration or interest on any of
the Securities of such series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum or other property sufficient to pay or
deliver the principal (and premium, if any), Maturity Consideration or interest
so becoming due until such sums or other property shall be paid or delivered to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act. If the Company chooses to
act as its own Paying Agent, the Company shall notify the Trustee 15 Business
Days prior to such action.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to the opening of business on each due date
of the principal of (and premium, if any), Maturity Consideration or interest on
any Securities of such series, deposit with a Paying Agent a sum or other
property sufficient to pay or deliver the principal (and premium, if any),
Maturity Consideration or interest so becoming due, such sum or other property
to be held in trust for the benefit of the Persons entitled to such principal
(and premium, if any), Maturity Consideration or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(a) hold all sums or other property held by it for the payment of or
delivery of the principal of (and premium, if any), Maturity
Consideration or interest on Securities of such series in trust
for the benefit of the Persons entitled thereto until such sums
or other property shall be paid or delivered to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making
of any payment or delivery of principal
56
(and premium, if any), Maturity Consideration or interest on the
Securities of such series; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay or deliver to the
Trustee all sums or other property so held in trust by such
Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay or
deliver, or by Company Order direct any Paying Agent to pay or deliver, to the
Trustee all sums or other property held in trust by the Company or such Paying
Agent, such sums or other property to be held by the Trustee upon the same
trusts as those upon which such sums or other property were held by the Company
or such Paying Agent; and, upon such payment or delivery by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money or other property.
Any money or other property deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment or delivery of the
principal of (and premium, if any), Maturity Consideration or interest in any
Security of any series and remaining unclaimed for two years after such
principal (and premium, if any), Maturity Consideration or interest has become
due and payable or deliverable shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be paid
or delivered to the Company on Company request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment or delivery thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money or other property, and all liability of
the Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment or delivery, may at the expense of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment, notice that such
money or other property remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money or other property then remaining will be
repaid or delivered to the Company.
Section 10.04 Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of any series or any
coupon appertaining thereto additional amounts as provided therein. Whenever in
this Indenture there is mentioned, in any context, the payment of the principal
of (or premium, if any) or interest on, or in respect to, any Security of any
series or payment of any related coupon or the net proceeds received on the sale
or exchange of any Securities of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding additional amounts in
those provisions hereof where such express mention is not made.
57
If the Securities of a series provided for the payment of additional
amounts, at least 15 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment or delivery of
principal (and premium, if any) or Maturity Consideration is made), and at least
15 days prior to each date of payment or delivery of principal of (and premium,
if any) or Maturity Consideration or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment or delivery of principal of (and premium, if any) or Maturity
Consideration or interest on the Securities of that series shall be made to
Holders of Securities of that series or any related coupons who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
or deliveries to such Holders of Securities or coupons and the Company will pay
to the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against any loss, liability or expense reasonably
incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
Section 10.05 Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, the rights (charter and statutory) and franchises of the Company;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company considered
as a whole and that the loss thereof is not disadvantageous in any material
respect to the Holders of Securities.
Section 10.06 Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, commencing with the first calendar year following the
issuance of Securities of any series under this Indenture, a brief certificate,
which need not comply with Section 1.02, signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, covering the period from the date of issuance of such Securities to
the end of the calendar year in which such Securities were issued, in the case
of the first such certificate, and covering the preceding calendar year in the
case of each subsequent certificate stating, as to each signer thereof, that
(a) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his
supervision, and
(b) to the best of his or her knowledge, based on such review, (a)
the Company has complied with all conditions and covenants on its
part contained in this Indenture throughout such year, or, if
there has been a default by the Company in the performance,
58
observance or fulfillment of any such condition or covenant,
specifying each such default known to him or her and the nature
and status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both
would become, an Event of Default, or, if such an event has
occurred and is continuing, specifying each such event known to
him or her and the nature and status thereof.
For the purpose of this Section 10.06, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
Section 10.07 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 10.05 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least 50% in principal amount, or if such Securities are not payable at
Maturity for a fixed principal amount, 50% of the aggregate issue price, of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company in
respect of any such term, provision or condition shall remain in full force and
effect.
Section 10.08 Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) 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 and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
Section 10.09 Statement by Officers as to Default.
The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
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Section 11.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities redeemable at the
option of the Company shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least [60] days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount or amount of Maturity Consideration of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish such
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 11.03 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than [60] days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, on a pro rata basis, by lot or
by such method as such Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions of the principal amount or
issue price of Securities of such series or a denomination equal to or larger
than the minimum authorized denomination for Securities of that series. Unless
otherwise provided by the terms of the Securities of any series the
denominations of the Securities so selected for partial redemption shall be, in
the case of Registered Securities, equal in value to $[_____] or an integral
multiple of $[_____] in excess thereof, or, in the case of Bearer Securities,
equal to $[_____] or $[_____], and the principal amount of any such Securities
which remains outstanding shall not be less than the minimum authorized
denomination for Securities of such series.
The Trustee shall promptly notify the Company, the Security Registrar
and the Co-Trustee, if any, in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount or Maturity Consideration thereof to be redeemed.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities that have
been converted during a selection of Securities to be redeemed shall be treated
by the Trustee as Outstanding for the purpose of such selection.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 11.04 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than [30] nor more than [60] days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register, or, in the case of Bearer Securities, the
manner provided in Section 1.06.
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All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial
redemption, respective the principal amounts) of the particular
Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, that
interest, if any, thereon will cease to accrue on and after said
date;
(e) in the case any Security is to be redeemed in part only, the
notice that relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the
Holder will receive, without charge, a new Security or securities
of authorized denominations for the principal amount thereof
remaining unredeemed;
(f) the conversion price, the date on which the right to convert the
principal of the Securities to be redeemed will terminate and the
place or places where such Securities may be surrendered for
conversion;
(g) the place or places where such Securities, together in the case
of Bearer Securities with all remaining coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price; and
(h) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by such
Trustee in the name and at the expense of the Company. The notice if mailed in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice. In any case, a failure to
give such notice by mail or any defect in the notice to the Holder of any
Security designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security.
Section 11.05 Deposit of Redemption Price.
Prior to 10:00 A.M., New York City time, on any Redemption Date, the
Company shall deposit or cause to be deposited with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.03) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date, other than any Securities called for redemption on that date that
have been converted prior to the date of such deposit.
61
If any Security called for redemption is converted, any money deposited
with the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to the right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 3.07) be paid to the Company upon Company Request or,
if then held by the Company, shall be discharged from such trust.
Section 11.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest and the coupons for such interest appertaining to
any Bearer Securities so to be redeemed, except to the extent provided below,
shall be void. Upon surrender of any such Securities for redemption in
accordance with said notice, such Securities shall be paid by the Company at the
Redemption Price; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender of coupons for such interest. Installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such on the close of business on the
relevant Regular Record Dates according to their terms and the provisions of
Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by such
Security, or as otherwise provided in such Security.
Section 11.07 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at the office or agency of the Company in a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and such Trustee shall authenticate and deliver to
the Holder of such Security without service charge to the Holder, a new Security
or Securities of the same Series and Stated Maturity, of any authorized
denominations as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security
so surrendered.
ARTICLE XII
[Conversion of Securities]
Section 12.01 Conversion Privilege.
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, Securities of any series or any portion of the
principal amount thereof that is
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$[______] or an integral multiple of $[______] may be converted at the principal
amount thereof, or such portion thereof, into fully paid and nonassessable
shares (calculated as to each conversion to the nearest 1/100 of a share) of
Common Stock, in accordance with the terms of such series of Securities and
(except as otherwise specified as contemplated by Section 3.01) in accordance
with this Article. In case a Security or portion thereof is called for
redemption, such conversion right in respect of the Security or portion so
called shall expire at the close of business on the Business Day that is 10 days
prior to the Redemption Date, unless the Company defaults in making the payment
due upon redemption.
The price at which shares of Common Stock shall be delivered upon
conversion, which shall be specified as contemplated by Section 3.01, shall be
referred to herein as the "conversion price." The conversion price shall be
adjusted in certain instances as provided in paragraphs (a), (b), (c), (d) and
(g) of Section 12.04.
Section 12.02 Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency of the Company
maintained for that purpose pursuant to Section 10.02, accompanied by written
notice to the Company at such office or agency that the Holder elects to convert
such Security or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted. Securities surrendered for
conversion during the period from the close of business on any Regular Record
Date next preceding any Interest Payment Date to the opening of business on such
Interest Payment Date shall (except in the case of Securities or portions
thereof that have been called for redemption on a Redemption Date within such
period) be accompanied by payment in New York Clearing House funds or other
funds acceptable to the Company of an amount equal to the interest payable on
such Interest Payment Date on the principal amount of Securities being
surrendered for conversion. Except as provided in the preceding sentence and in
Section 3.07, no payment or adjustment shall be made upon any conversion on
account of any interest accrued on the Securities surrendered for conversion or
on account of any dividends on the Common Stock issued upon conversion.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and deliver at such office or agency a certificate or certificates
for the number of full shares of Common Stock issuable upon conversion, together
with payment in lieu of any fractional share, as provided in Section 12.03.
In the case of any Security that is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the portion of the principal amount of such Security not converted.
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Section 12.03 Fractional Shares.
No fractional shares of Common Stock shall be issued upon conversion of
Securities. If more than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares that shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof) so surrendered. Instead
of a fractional share of Common Stock that would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the
Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the market price per share of Common Stock (as
determined by the Board of Directors or in any manner prescribed by the Board of
Directors) at the close of business on the day of conversion.
Section 12.04 Adjustment of Conversion Price.
(a) In case the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company in
Common Stock, the conversion price in effect at the opening of
the Trading Day following the date fixed for the determination of
stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such conversion
price by a fraction, the numerator of which shall be the number
of shares of Common Stock outstanding at the close of the Trading
Day on the date fixed for such determination and the denominator
of which shall be the sum of such number of shares and the total
number of shares constituting such dividend or other
distribution, such reduction to become effective immediately
after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (a),
the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company, but
shall include shares issuable in respect of scrip certificates
issued in lieu of fractional shares of Common Stock. The Company
will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
(b) In case the Company shall issue rights or warrants to all holders
of its Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the current
market price per share (determined as provided in paragraph (f)
of this Section) of the Common Stock on the dated fixed for the
determination of stockholders entitled to receive such rights or
warrants, the conversion price in effect at the opening of the
Trading Day following the date fixed for such determination shall
be reduced by multiplying such conversion price by a fraction,
the numerator of which shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock that
the aggregate of the offering price of the total number of shares
of Common Stock so offered for subscription or purchase would
purchase at such current market price and the denominator of
which shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination
plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective
immediately after the opening of the Trading Day following the
date fixed
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for determination. For the purposes of this paragraph (b), the
number of shares of Common Stock at any time outstanding shall
not include shares held in the treasury of the Company, but shall
include shares issuable in respect of scrip certificates issued
in lieu of fractional shares of Common Stock. The Company will
not issue any rights or warrants in respect of shares of Common
Stock held in the treasury of the Company.
(c) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the conversion
price in effect at the opening of the Trading Day following the
day upon which such subdivision becomes effective shall be
proportionately reduced and, conversely, in the case that
outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the conversion price in
effect at the opening of business on the day following the day
upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision
or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its Indebtedness
or assets (including securities, but excluding any rights or
warrants referred to in paragraph (b) of this Section, any
dividend or distribution paid in cash out of the retained
earnings of the Company and any dividend or distribution referred
to in paragraph (a) of this Section), the conversion price shall
be adjusted so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to
the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution by a fraction,
the numerator of which shall be the current market price share
(determined as provided in paragraph (f) of this Section) of the
Common Stock on the date fixed for such determination less the
then fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board
Resolution filed with the Trustee) of the portion of the assets
or evidences of Indebtedness so distributed applicable to one
share of Common Stock and the denominator of which shall be such
current market price per share of the Common Stock, such
adjustment to become effective immediately prior to the opening
of business on the day following the date fixed for the
determination of stockholders entitled to receive such
distribution.
(e) The reclassification of Common Stock into securities other than
Common Stock (other than any reclassification upon a
consolidation or merger, to which Section 12.11 applies) shall be
deemed to involve (i) a distribution of such securities other
than Common Stock to all holders of Common Stock (and the
effective date of such reclassification shall be deemed to be
"the date fixed for the determination of stockholders entitled to
receive such distribution" and "the date fixed for such
determination" within the meaning of paragraph (d) of this
Section) and (ii) a subdivision or combination, as the case may
be, of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the number of
shares of Common Stock outstanding immediately thereafter (and
the
65
effective date of such reclassification shall be deemed to be
"the day upon which such subdivision becomes effective" or "the
day upon which such combination becomes effective," as the case
may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (c) of this
Section).
(f) For the purpose of any computation under paragraphs (b) and (d)
of this Section, the current market price per share of Common
Stock on any date shall be deemed to be the average of the daily
closing prices for the five consecutive Trading Days selected by
the Company commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the day in question and the
day before the "ex" date with respect to the issuance or
distribution requiring such computation. The closing price for
each day shall be the last reported sales price regular way or,
in case that no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way,
in either case on the New York Stock Exchange or, if the Common
Stock is not listed or admitted to trading on such Exchange, on
the principal national securities exchange on which the Common
Stock is listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, on the
Nasdaq National Market or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted
on the Nasdaq National Market, the average of the closing bid and
asked prices in the over-the-counter market as furnished by any
New York Stock Exchange member firm selected from time to time by
the Company for that purpose. For purposes of this paragraph, the
term "`ex date," when used with respect to any issuance or
distribution, means the first date on which the Common Stock
trades regular way on such exchange or in such market without the
right to receive such issuance or distribution.
(g) The Company may make such reductions in the conversion price, in
addition to those required by paragraphs (a), (b), (c) and (d) of
this Section, as it considers to be advisable in order that any
event treated for federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the recipients.
Section 12.05 Notice of Adjustments of Conversion Price.
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion price in
accordance with Section 12.04 and shall prepare a certificate
signed by the Treasurer of the Company setting forth the adjusted
conversion price and showing in reasonable detail the facts upon
which such adjustment is based, and such certificate shall
forthwith be filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 10.02;
and
(b) a notice stating that the conversion price has been adjusted and
setting forth the adjusted conversion price shall forthwith be
required and, as soon as practicable
66
after it is required, shall be mailed by the Company to all
Holders at their last addresses as they shall appear in the
Register.
Section 12.06 Notice of Certain Corporate Action.
In case:
(a) the Company shall declare a dividend (or any other distribution)
on the Common Stock payable otherwise than in cash out of its
retained earnings; or
(b) the Company shall authorize the granting to the holders of the
Common Stock of rights or warrants to subscribe for or purchase
any shares of capital stock of any class or of any other rights;
or
(c) of any reclassification of the Common Stock (other than a
subdivision or combination of its outstanding shares of Common
Stock), or of any consolidation or merger to which the Company is
a party and for which approval of any stockholders of the Company
is required, or of the sale or transfer of all or substantially
all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 10.02, and shall
cause to be mailed to all Holders at their last addresses as they shall appear
in the Register, at least 20 days (or 10 days in any case specified in clause
(a) or (b) above) prior to the applicable record or effective date hereinafter
specified, a notice stating (y) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights or warrants, or, if a record
is not to be taken, the date as of which the holders of Common Stock of record
to be entitled to such dividend, distribution, rights or warrants are to be
determined, or (z) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
Section 12.07 Company to Reserve Common Stock.
The Company shall at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, for the purpose of
effecting the conversion of Securities, the full number of shares of Common
Stock then issuable upon the conversion of all outstanding Securities.
Section 12.08 Taxes on Conversions.
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common Stock on conversion of Securities
pursuant hereto. The Company shall not, however, be required to pay any tax that
may be payable in respect of any transfer
67
involved in the issue and delivery of shares of Common Stock in a name other
than that of the Holder of the Security or Securities to be converted, and no
such issue or delivery shall be made unless and until the Person requesting such
issue has paid to the Company the amount of any such tax, or has established to
the satisfaction of the Company that such tax has been paid.
Section 12.09 Covenant as to Common Stock.
The Company covenants that all shares of Common Stock that may be
issued upon conversion of Securities will upon issue be fully paid and
nonassessable and, except as provided in Section 12.08, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
Section 12.10 Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 3.09.
Section 12.11 Provisions in Case of Consolidation, Merger or Sale of Assets.
In case of any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another Person into the Company
(other than a merger that does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock) or any sale or
transfer of all or substantially all of the assets of the Company, the Person
formed by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
outstanding shall have the right thereafter, during the period such Security
shall be convertible as specified in Section 12.01, to convert such Security
only into the kind and amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer by a holder of the number of
shares of Common Stock into which such Security might have been converted
immediately prior to such consolidation, merger, sale or transfer, assuming such
holder of Common Stock (i) is not a Person with which the Company consolidated
or into which the Company merged or which merged into the Company or to which
such sale or transfer was made, as the case may be ("constituent Person"), or an
Affiliate of a constituent Person and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer (provided
that if the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer is not the same for each share
of Common Stock of the Company held immediately prior to such consolidation,
merger, sale or transfer by others than a constituent Person or an Affiliate
thereof and in respect of which such rights of election shall not have been
exercised ("nonelecting share"), then for the purpose of this Section the kind
and amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by each nonelecting share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
nonelecting shares). Such supplemental indenture shall provide for adjustments
that, for events subsequent to the effective date of such supplemental
indenture, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article 12. The above provisions of this
Section shall similarly apply to successive consolidations, mergers, sales or
transfers.
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The Company shall be solely responsible for performing the duties and
responsibilities contained in this Article 12 and the Trustee shall have no
responsibility therefor.]
ARTICLE XIII
SINKING FUNDS
Section 13.01 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 13.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 13.02 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) together in the case of any Bearer
Securities of such series, with all unmatured coupons appertaining thereto and
(2) may apply as a credit Securities [of a series that have been converted
pursuant to Article 12 or] that have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 13.03 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying (i) the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, (ii) the portion thereof,
if any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 13.02 (such Security to be credited, or proof of
ownership thereof by the Company satisfactory to the Trustee, to be delivered
together with the Officers' Certificate), and (iii) that none of such Securities
has theretofore been so credited and stating the basis for such credit, and will
also deliver to the Trustee any Securities to be so delivered. Not less than 30
days before each sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such
69
sinking fund payment date in the manner specified in Section 11.03 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.04. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Section 11.06 and 11.07.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.01 Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security or coupon, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom; and that any and all such personal liability, either at common law or
in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or coupons or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of the Securities.
ARTICLE XV
MISCELLANEOUS
Section 15.01 Counterparts.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original; but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
COMMERCE BANCORP, INC.
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By:
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Title:
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THE BANK OF NEW YORK, as Trustee
By:
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Title:
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