MABVAX THERAPEUTICS HOLDINGS, INC., ISSUER AND [TRUSTEE], TRUSTEE INDENTURE DATED AS OF , 20 SUBORDINATED DEBT SECURITIES
Exhibit 4.2
ISSUER
AND
[TRUSTEE],
TRUSTEE
DATED AS OF , 20
SUBORDINATED DEBT SECURITIES
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TABLE OF CONTENTS
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ARTICLE
I DEFINITIONS
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Section
1.1 Definitions of Terms
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ARTICLE
II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE
OF SECURITIES
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Section
2.1 Designation and Terms of Securities
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Section
2.2 Form of Securities and Trustee’s Certificate
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Section
2.3 Denominations: Provisions for Payment
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Section
2.4 Execution and Authentications
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Section
2.5 Registration of Transfer and Exchange
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Section
2.6 Temporary Securities
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Section
2.7 Mutilated, Destroyed, Lost or Stolen Securities
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Section
2.8 Cancellation
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Section
2.9 Benefits of Indenture
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Section
2.10 Authenticating Agent
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Section
2.11 Global Securities
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ARTICLE
III REDEMPTION OF SECURITIES AND SINKING FUND
PROVISIONS
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Section
3.1 Redemption
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Section
3.2 Notice of Redemption
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Section
3.3 Payment Upon Redemption
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Section
3.4 Sinking Fund
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Section
3.5 Satisfaction of Sinking Fund Payments with
Securities
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Section
3.6 Redemption of Securities for Sinking Fund
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ARTICLE
IV COVENANTS
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Section
4.1 Payment of Principal, Premium and Interest
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Section
4.2 Maintenance of Office or Agency
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Section
4.3 Paying Agents
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Section
4.4 Appointment to Fill Vacancy in Office of Trustee
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Section
4.5 Compliance with Consolidation Provisions
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ARTICLE
V SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE
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Section
5.1 Company to Furnish Trustee Names and Addresses of
Securityholders
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Section
5.2 Preservation Of Information; Communications With
Securityholders
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Section
5.3 Reports by the Company
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Section
5.4 Reports by the Trustee
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ARTICLE
VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
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Section
6.1 Events of Default
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Section
6.2 Collection of Indebtedness and Suits for Enforcement by
Trustee
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Section
6.3 Application of Moneys Collected
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Section
6.4 Limitation on Suits
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Section
6.5 Rights and Remedies Cumulative; Delay or Omission Not
Waiver
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Section
6.6 Control by Securityholders
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Section
6.7 Undertaking to Pay Costs
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ARTICLE
VII CONCERNING THE TRUSTEE
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Section
7.1 Certain Duties and Responsibilities of Trustee
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Section
7.2 Certain Rights of Trustee
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Section
7.3 Trustee Not Responsible for Recitals or Issuance or
Securities
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Section
7.4 May Hold Securities
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Section
7.5 Moneys Held in Trust
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Section
7.6 Compensation and Reimbursement
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Section
7.7 Reliance on Officer’s Certificate
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Section
7.8 Disqualification; Conflicting Interests
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Section
7.9 Corporate Trustee Required; Eligibility
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Section
7.10 Resignation and Removal; Appointment of Successor
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Section
7.11 Acceptance of Appointment By Successor
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Section
7.12 Merger, Conversion, Consolidation or Succession to
Business
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Section
7.13 Preferential Collection of Claims Against the
Company
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Section
7.14 Notice of Default
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ARTICLE
VIII CONCERNING THE SECURITYHOLDERS
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Section
8.1 Evidence of Action by Securityholders
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Section
8.2 Proof of Execution by Securityholders
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Section
8.3 Who May be Deemed Owners
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Section
8.4 Certain Securities Owned by Company Disregarded
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Section
8.5 Actions Binding on Future Securityholders
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ARTICLE
IX SUPPLEMENTAL INDENTURES
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Section
9.1 Supplemental Indentures Without the Consent of
Securityholders
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Section
9.2 Supplemental Indentures With Consent of
Securityholders
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Section
9.3 Effect of Supplemental Indentures
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Section
9.4 Securities Affected by Supplemental Indentures
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Section
9.5 Execution of Supplemental Indentures
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ARTICLE
X SUCCESSOR ENTITY
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Section
10.1 Company May Consolidate, Etc
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Section
10.2 Successor Entity Substituted
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Section
10.3 Evidence of Consolidation, Etc
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ARTICLE
XI SATISFACTION AND DISCHARGE
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Section
11.1 Satisfaction and Discharge of Indenture
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Section
11.2 Discharge of Obligations
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Section
11.3 Deposited Moneys to be Held in Trust
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Section
11.4 Payment of Moneys Held by Paying Agents
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Section
11.5 Repayment to Company
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ARTICLE
XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS
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Section
12.1 No Recourse
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ARTICLE
XIII MISCELLANEOUS PROVISIONS
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Section
13.1 Effect on Successors and Assigns
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Section
13.2 Actions by Successor
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Section
13.3 Surrender of Company Powers
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Section
13.4 Notices
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Section
13.5 Governing Law
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Section
13.6 Treatment of Securities as Debt
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Section
13.7 Certificates and Opinions as to Conditions
Precedent
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Section
13.8 Payments on Business Days
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Section
13.9 Conflict with Trust Indenture Act
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Section
13.10 Counterparts
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Section
13.11 Separability
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Section
13.12 Compliance Certificates
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ARTICLE
XIV SUBORDINATION OF SECURITIES
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Section
14.1 Subordination Terms
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INDENTURE
INDENTURE, dated as
of [●], among MabVax Therapeutics Holdings, Inc., a Delaware
corporation, and [TRUSTEE], as trustee:
WHEREAS, for its
lawful corporate purposes, the Company has duly authorized the
execution and delivery of this Indenture to provide for the
issuance of subordinated debt securities (hereinafter referred to
as the “Securities”), in an unlimited aggregate
principal amount to be issued from time to time in one or more
series as in this Indenture provided, as registered Securities
without coupons, to be authenticated by the certificate of the
Trustee;
WHEREAS, to provide
the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly
authorized the execution of this Indenture; and
WHEREAS, all things
necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been done.
NOW,
THEREFORE, in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the holders
of Securities:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions of
Terms.
The
terms defined in this Section (except as in this Indenture or any
indenture supplemental hereto otherwise expressly provided or
unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section and shall include the
plural as well as the singular. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as
amended, or that are by reference in such Act defined in the
Securities Act of 1933, as amended (except as herein or any
indenture supplemental hereto otherwise expressly provided or
unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this
instrument.
“Authenticating
Agent” means an authenticating agent with respect to all or
any of the series of Securities appointed by the Trustee pursuant
to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
“Board of
Directors” means the Board of Directors of the Company or any
duly authorized committee of such Board.
“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 and to be in full force and
effect on the date of such certification.
“Business
Day” means, with respect to any series of Securities, any day
other than a day on which federal or state banking institutions in
the Borough of Manhattan, the City of New York, or in the city of
the Corporate Trust Office of the Trustee, are authorized or
obligated by law, executive order or regulation to
close.
“Certificate”
means a certificate signed by any Officer. The Certificate need not
comply with the provisions of Section 13.7.
“Company”
means MabVax Therapeutics Holdings, Inc., a corporation duly
organized and existing under the laws of the State of Delaware,
and, subject to the provisions of Article X, shall also include its
successors and assigns.
“Corporate
Trust Office” means the office of the Trustee at which, at
any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is
located at .
“Custodian”
means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
“Default”
means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
“Defaulted
Interest” has the meaning set forth in Section
2.3.
“Depositary”
means, with respect to Securities of any series for which the
Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, another clearing
agency, or any successor registered as a clearing agency under the
Exchange Act, or other applicable statute or regulation, which, in
each case, shall be designated by the Company pursuant to either
Section 2.1 or 2.11.
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“Event of
Default” means, with respect to Securities of a particular
series, any event specified in Section 6.1, continued for the
period of time, if any, therein designated.
“Exchange
Act” means the Securities and Exchange Act of 1934, as
amended.
“Global
Security” means, with respect to any series of Securities, a
Security executed by the Company and delivered by the Trustee to
the Depositary or pursuant to the Depositary’s instruction,
all in accordance with the Indenture, which shall be registered in
the name of the Depositary or its nominee.
“Governmental
Obligations” means securities that are (a) direct obligations
of the United States of America for the payment of which its full
faith and credit is pledged or (b) obligations of a Person
controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case,
are not callable or redeemable at the option of the issuer thereof
at any time prior to the stated maturity of the Securities, and
shall also include a depositary receipt issued by a bank or trust
company as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account
of the holder of such depositary receipt; provided, however, that
(except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in
respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced
by such depositary receipt.
“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.
“Indenture”
means this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms
hereof.
“Interest
Payment Date,” when used with respect to any installment of
interest on a Security of a particular series, means the date
specified in such Security or in a Board Resolution or in an
indenture supplemental hereto with respect to such series as the
fixed date on which an installment of interest with respect to
Securities of that series is due and payable.
“Officer”
means, with respect to the Company, the chairman of the Board of
Directors, a chief executive officer, a president, a chief
financial officer, a chief operating officer, any executive vice
president, any senior vice president, any vice president, the
treasurer or any assistant treasurer, the controller or any
assistant controller or the secretary or any assistant
secretary.
“Officer’s
Certificate” means a certificate signed by any Officer. Each
such certificate shall include the statements provided for in
Section 13.7, if and to the extent required by the provisions
thereof.
“Opinion of
Counsel” means an opinion in writing subject to customary
exceptions of legal counsel, who may be an employee of or counsel
for the Company, that is delivered to the Trustee in accordance
with the terms hereof. Each such opinion shall include the
statements provided for in Section 13.7, if and to the extent
required by the provisions thereof.
“Outstanding,”
when used with reference to Securities of any series, means,
subject to the provisions of Section 8.4, as of any particular
time, all Securities of that series theretofore authenticated and
delivered by the Trustee under this Indenture, except (a)
Securities theretofore canceled by the Trustee or any paying agent,
or delivered to the Trustee or any paying agent for cancellation or
that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as provided in
Article III, or provision satisfactory to the Trustee shall have
been made for giving such notice; and (c) Securities in lieu of or
in substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section
2.7.
“Person”
means any individual, corporation, partnership, joint venture,
joint-stock company, limited liability company, association, trust,
unincorporated organization, any other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
“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 2.7 in lieu of a lost, destroyed or stolen Security shall
be deemed to evidence the same debt as the lost, destroyed or
stolen Security.
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“Responsible
Officer” when used with respect to the Trustee means the
chairman of its board of directors, the chief executive officer,
the president, any vice president, the secretary, the treasurer,
any trust officer, any corporate trust officer or any other officer
or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
“Securities”
means the debt Securities authenticated and delivered under this
Indenture.
“Securityholder,”
“holder of Securities,” “registered
holder,” or other similar term, means the Person or Persons
in whose name or names a particular Security shall be registered on
the books of the Company kept for that purpose in accordance with
the terms of this Indenture.
“Security
Register” and “Security Registrar” shall have the
meanings as set forth in Section 2.5.
“Subsidiary”
means, with respect to any Person, (i) any corporation at least a
majority of whose outstanding Voting Stock shall at the time be
owned, directly or indirectly, by such Person or by one or more of
its Subsidiaries or by such Person and one or more of its
Subsidiaries, (ii) any general partnership, joint venture or
similar entity, at least a majority of whose outstanding
partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a
general partner.
“Trustee”
means , and, subject to the provisions of Article VII, shall also
include its successors and assigns, and, if at any time there is
more than one Person acting in such capacity hereunder,
“Trustee” shall mean each such Person. The term
“Trustee” as used with respect to a particular series
of the Securities shall mean the trustee with respect to that
series.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as
amended.
“Voting
Stock,” as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity
interest (however designated) in such Person having ordinary voting
power for the election of a majority of the directors (or the
equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by
reason of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
Section
2.1 Designation and Terms of Securities.
(a) The
aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may
be issued in one or more series up to the aggregate principal
amount of Securities of that series from time to time authorized by
or pursuant to a Board Resolution or pursuant to one or more
indentures supplemental hereto. Prior to the initial issuance of
Securities of any series, there shall be established in or pursuant
to a Board Resolution, and set forth in an Officer’s
Certificate, or established in one or more indentures supplemental
hereto:
(i) the
title of the Securities of the series (which shall distinguish the
Securities of that series from all other Securities);
(ii)
any limit upon the aggregate principal amount of the Securities of
that series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of that series);
(iii)
the date or dates on which the principal of the Securities of the
series is payable, any original issue discount that may apply to
the Securities of that series upon their issuance, the principal
amount due at maturity, and the place(s) of payment;
(iv)
the rate or rates at which the Securities of the series shall bear
interest or the manner of calculation of such rate or rates, if
any;
(v) the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates, the place(s) of
payment, and the record date for the determination of holders to
whom interest is payable on any such Interest Payment Dates or the
manner of determination of such record dates;
(vi)
the right, if any, to extend the interest payment periods and the
duration of such extension;
(vii)
the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the
Company;
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(viii)
the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund, mandatory
redemption, or analogous provisions (including payments made in
cash in satisfaction of future sinking fund obligations) or at the
option of a holder thereof and the period or periods within which,
the price or prices at which, and the terms and conditions upon
which, Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(ix)
the form of the Securities of the series including the form of the
Certificate of Authentication for such series;
(x) if
other than denominations of one thousand U.S. dollars ($1,000) or
any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(xi)
any and all other terms (including terms, to the extent applicable,
relating to any auction or remarketing of the Securities of that
series and any security for the obligations of the Company with
respect to such Securities) with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture,
as amended by any supplemental indenture) including any terms which
may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of
Securities of that series;
(xii)
whether the Securities are issuable as a Global Security and, in
such case, the terms and the identity of the Depositary for such
series;
(xiii)
whether the Securities will be convertible into or exchangeable for
shares of common stock, preferred stock or other securities of the
Company or any other Person and, if so, the terms and conditions
upon which such Securities will be so convertible or exchangeable,
including the conversion or exchange price, as applicable, or how
it will be calculated and may be adjusted, any mandatory or
optional (at the Company’s option or the holders’
option) conversion or exchange features, and the applicable
conversion or exchange period;
(xiv)
if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant
to Section 6.1;
(xv)
any additional or different Events of Default or restrictive
covenants (which may include, among other restrictions,
restrictions on the Company’s ability or the ability of the
Company’s Subsidiaries to: incur additional indebtedness;
issue additional securities; create liens; pay dividends or make
distributions in respect of the capital stock of the Company or the
Company’s Subsidiaries; redeem capital stock; place
restrictions on the Company’s Subsidiaries’ ability to
pay dividends, make distributions or transfer assets; make
investments or other restricted payments; sell or otherwise dispose
of assets; enter into sale-leaseback transactions; engage in
transactions with stockholders or affiliates; issue or sell stock
of the Company’s Subsidiaries; or effect a consolidation or
merger) or financial covenants (which may include, among other
financial covenants, financial covenants that require the Company
and its Subsidiaries to maintain specified interest coverage, fixed
charge, cash flow-based, asset-based or other financial ratios)
provided for with respect to the Securities of the
series;
(xvi)
if other than dollars, the coin or currency in which the Securities
of the series are denominated (including, but not limited to,
foreign currency);
(xvii)
the terms and conditions, if any, upon which the Company shall pay
amounts in addition to the stated interest, premium, if any and
principal amounts of the Securities of the series to any
Securityholder that is not a “United States person” for
federal tax purposes;
(xviii)
any restrictions on transfer, sale or assignment of the Securities
of the series; and
(xix)
the subordination terms of the Securities of the
series.
All
Securities of any one series shall be substantially identical
except as may otherwise be provided in or pursuant to any such
Board Resolution or in any indentures supplemental
hereto.
If any
of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the secretary or an
assistant secretary of the Company and delivered to the Trustee at
or prior to the delivery of the Officer’s Certificate of the
Company setting forth the terms of the series.
Securities of any
particular series may be issued at various times, with different
dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with
different dates on which such interest may be payable and with
different redemption dates.
-6-
Section 2.2 Form of Securities and
Trustee’s Certificate.
The
Securities of any series and the Trustee’s certificate of
authentication to be borne by such Securities shall be
substantially of the tenor and purport as set forth in one or more
indentures supplemental hereto or as provided in a Board
Resolution, and set forth in an Officer’s Certificate, and
they may have such letters, numbers or other marks of
identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange on which Securities of that
series may be listed, or to conform to usage.
Section 2.3 Denominations: Provisions for
Payment.
The
Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.1(a)(x).
The
Securities of a particular series shall bear interest payable on
the dates and at the rate specified with respect to that series.
Subject to Section 2.1(a)(xvi), the principal of and the interest
on the Securities of any series, as well as any premium thereon in
case of redemption thereof prior to maturity, shall be payable in
the coin or currency of the United States of America that at the
time is legal tender for public and private debt, at the office or
agency of the Company maintained for that purpose. Each Security
shall be dated the date of its authentication. Interest on the
Securities shall be computed on the basis of a 360-day year
composed of twelve 30-day months.
The
interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date
for Securities of that series shall be paid to the Person in whose
name said Security (or one or more Predecessor Securities) is
registered at the close of business on the regular record date for
such interest installment. In the event that any Security of a
particular series or portion thereof is called for redemption and
the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest
Payment Date, interest on such Security will be paid upon
presentation and surrender of such Security as provided in Section
3.3.
Any
interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for
Securities of the same series (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the
registered holder on the relevant regular record date by virtue of
having been such holder; and such Defaulted Interest shall be paid
by the Company, at its election, as provided in clause (i) or
clause (ii) below:
(i) The
Company may make payment of any Defaulted Interest on Securities to
the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on
a special record date for the payment of such Defaulted Interest,
which shall be fixed in the following manner: the Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the
proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the
payment of such Defaulted Interest which shall not be more than 15
nor less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify
the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the special record date therefor to
be mailed, first class postage prepaid, to each Securityholder at
his or her address as it appears in the Security Register (as
hereinafter defined), not less than 10 days prior to such special
record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Securities (or their respective Predecessor
Securities) are registered on such special record
date.
(ii)
The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities
may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Unless
otherwise set forth in a Board Resolution or one or more indentures
supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.1 hereof, the term “regular
record date” as used in this Section with respect to a series
of Securities and any Interest Payment Date for such series shall
mean either the fifteenth day of the month immediately preceding
the month in which an Interest Payment Date established for such
series pursuant to Section 2.1 hereof shall occur, if such Interest
Payment Date is the first day of a month, or the first day of the
month in which an Interest Payment Date established for such series
pursuant to Section 2.1 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such
date is a Business Day.
Subject
to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security of such series shall
carry the rights to interest accrued and unpaid, and to accrue,
that were carried by such other Security.
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Section 2.4 Execution and
Authentications.
The
Securities shall be signed on behalf of the Company by one of its
Officers. Signatures may be in the form of a manual or facsimile
signature.
The
Company may use the facsimile signature of any Person who shall
have been an Officer, notwithstanding the fact that at the time the
Securities shall be authenticated and delivered or disposed of such
Person shall have ceased to be such an officer of the Company. The
Securities may contain such notations, legends or endorsements
required by law, stock exchange rule or usage. Each Security shall
be dated the date of its authentication by the
Trustee.
A
Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent.
Such signature shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and
delivery of such Securities, signed by an Officer, and the Trustee
in accordance with such written order shall authenticate and
deliver such Securities.
In
authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, if requested,
and (subject to Section 7.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the form and terms thereof
have been established in conformity with the provisions of this
Indenture.
The
Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner that is not
reasonably acceptable to the Trustee.
Section
2.5 Registration of Transfer and Exchange.
(a)
Securities of any series may be exchanged upon presentation thereof
at the office or agency of the Company designated for such purpose,
for other Securities of such series of authorized denominations,
and for a like aggregate principal amount, upon payment of a sum
sufficient to cover any tax or other governmental charge in
relation thereto, all as provided in this Section. In respect of
any Securities so surrendered for exchange, the Company shall
execute, the Trustee shall authenticate and such office or agency
shall deliver in exchange therefor the Security or Securities of
the same series that the Securityholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously
outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency
designated for such purpose a register or registers (herein
referred to as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of
Securities as in this Article provided and which at all reasonable
times shall be open for inspection by the Trustee. The registrar
for the purpose of registering Securities and transfer of
Securities as herein provided shall be appointed as authorized by
Board Resolution (the “Security
Registrar”).
Upon
surrender for transfer of any Security at the office or agency of
the Company designated for such purpose, the Company shall execute,
the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security
or Securities of the same series as the Security presented for a
like aggregate principal amount.
All
Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the
Company or the Security Registrar, duly executed by the registered
holder or by such xxxxxx’s duly authorized attorney in
writing.
(c)
Except as provided pursuant to Section 2.1 pursuant to a Board
Resolution, and set forth in an Officer’s Certificate, or
established in one or more indentures supplemental to this
Indenture, no service charge shall be made for any exchange or
registration of transfer of Securities, or issue of new Securities
in case of partial redemption of any series, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, other than exchanges
pursuant to Section 2.6, Section 3.3(b) and Section 9.4 not
involving any transfer.
(d) The
Company shall not be required (i) to issue, exchange or register
the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a
notice of redemption of less than all the Outstanding Securities of
the same series and ending at the close of business on the day of
such mailing, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption,
other than the unredeemed portion of any such Securities being
redeemed in part. The provisions of this Section 2.5 are, with
respect to any Global Security, subject to Section 2.11
hereof.
-8-
Section
2.6 Temporary Securities.
Pending
the preparation of definitive Securities of any series, the Company
may execute, and the Trustee shall authenticate and deliver,
temporary Securities (printed, lithographed or typewritten) of any
authorized denomination. Such temporary Securities shall be
substantially in the form of the definitive Securities in lieu of
which they are issued, but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Every temporary Security of any
series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same
manner, and with like effect, as the definitive Securities of such
series. Without unnecessary delay the Company will execute and will
furnish definitive Securities of such series and thereupon any or
all temporary Securities of such series may be surrendered in
exchange therefor (without charge to the holders), at the office or
agency of the Company designated for the purpose, and the Trustee
shall authenticate and such office or agency shall deliver in
exchange for such temporary Securities an equal aggregate principal
amount of definitive Securities of such series, unless the Company
advises the Trustee to the effect that definitive Securities need
not be executed and furnished until further notice from the
Company. Until so exchanged, the temporary Securities of such
series shall be entitled to the same benefits under this Indenture
as definitive Securities of such series authenticated and delivered
hereunder.
Section 2.7 Mutilated, Destroyed, Lost or
Stolen Securities.
In case
any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon the Company’s
request the Trustee (subject as aforesaid) shall authenticate and
deliver, a new Security of the same series, bearing a number not
contemporaneously outstanding, in exchange and substitution for the
mutilated Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen. In every case the applicant
for a substituted Security shall furnish to the Company and the
Trustee such security or indemnity as may be required by them to
save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and the
Trustee evidence to their satisfaction of the destruction, loss or
theft of the applicant’s Security and of the ownership
thereof. The Trustee may authenticate any such substituted Security
and deliver the same upon the written request or authorization of
any officer of the Company. Upon the issuance of any substituted
Security, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
In case
any Security that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Security, pay or authorize the payment of
the same (without surrender thereof except in the case of a
mutilated Security) if the applicant for such payment shall furnish
to the Company and the Trustee such security or indemnity as they
may require to save them harmless, and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Security and of
the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of
the Company whether or not the mutilated, destroyed, lost or stolen
Security shall be found at any time, or be 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 duly issued hereunder. All Securities shall be held and
owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities, and shall preclude (to the
extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their
surrender.
Section
2.8 Cancellation.
All
Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled
by it, and no Securities shall be issued in lieu thereof except as
expressly required or permitted by any of the provisions of this
Indenture. On request of the Company at the time of such surrender,
the Trustee shall deliver to the Company canceled Securities held
by the Trustee. In the absence of such request the Trustee may
dispose of canceled Securities in accordance with its standard
procedures and deliver a certificate of disposition to the Company.
If the Company shall otherwise acquire any of the Securities,
however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for
cancellation.
Section
2.9 Benefits of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall
give or be construed to give to any Person, other than the parties
hereto and the holders of the Securities (and, with respect to the
provisions of Article XIV, the holders of any indebtedness of the
Company to which the Securities of any series are subordinated) any
legal or equitable right, remedy or claim under or in respect of
this Indenture, or under any covenant, condition or provision
herein contained; all such covenants, conditions and provisions
being for the sole benefit of the parties hereto and of the holders
of the Securities (and, with respect to the provisions of Article
XIV, the holders of any indebtedness of the Company to which the
Securities of any series are subordinated).
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Section
2.10 Authenticating Agent.
So long
as any of the Securities of any series remain Outstanding there may
be an Authenticating Agent for any or all such series of Securities
which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon
exchange, transfer or partial redemption thereof, 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. All references in this
Indenture to the authentication of Securities by the Trustee shall
be deemed to include authentication by an Authenticating Agent for
such series. Each Authenticating Agent shall be acceptable to the
Company and shall be a corporation that 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 or
in which it is doing business to conduct a trust business, and that
is otherwise authorized under such laws to conduct such business
and is subject to supervision or examination by federal or state
authorities. If at any time any Authenticating Agent shall cease to
be eligible in accordance with these provisions, it shall resign
immediately.
Any
Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The
Trustee may at any time (and upon request by the Company shall)
terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the
Company. Upon resignation, termination or cessation of eligibility
of any Authenticating Agent, the Trustee may appoint an eligible
successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
Section
2.11 Global Securities.
(a) If
the Company shall establish pursuant to Section 2.1 that the
Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.4, authenticate and deliver, a Global
Security that (i) shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all of the
Outstanding Securities of such series, (ii) shall be registered in
the name of the Depositary or its nominee, (iii) shall be delivered
by the Trustee to the Depositary or pursuant to the
Depositary’s instruction and (iv) shall bear a legend
substantially to the following effect: “Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of
the Depositary or to a successor Depositary or to a nominee of such
successor Depositary.”
(b)
Notwithstanding the provisions of Section 2.5, the Global Security
of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.5, only to another nominee of the
Depositary for such series, or to a successor Depositary for such
series selected or approved by the Company or to a nominee of such
successor Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies
the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for
such series shall no longer be registered or in good standing under
the Exchange Act, or other applicable statute or regulation, and a
successor Depositary for such series is not appointed by the
Company within 90 days after the Company receives such notice or
becomes aware of such condition, as the case may be, or if an Event
of Default has occurred and is continuing and the Company has
received a request from the Depositary or from the Trustee, this
Section 2.11 shall no longer be applicable to the Securities of
such series and the Company will execute, and subject to Section
2.4, the Trustee will authenticate and deliver the Securities of
such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such series
in exchange for such Global Security. In addition, the Company may
at any time determine that the Securities of any series shall no
longer be represented by a Global Security and that the provisions
of this Section 2.11 shall no longer apply to the Securities of
such series. In such event the Company will execute and, subject to
Section 2.4, the Trustee, upon receipt of an Officer’s
Certificate evidencing such determination by the Company, will
authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange
for such Global Security. Upon the exchange of the Global Security
for such Securities in definitive registered form without coupons,
in authorized denominations, the Global Security shall be canceled
by the Trustee. Such Securities in definitive registered form
issued in exchange for the Global Security pursuant to this Section
2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such
Securities are so registered.
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ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section
3.1 Redemption.
The
Company may redeem the Securities of any series issued hereunder on
and after the dates and in accordance with the terms established
for such series pursuant to Section 2.1 hereof.
Section 3.2 Notice of
Redemption.
(a) In
case the Company shall desire to exercise such right to redeem all
or, as the case may be, a portion of the Securities of any series
in accordance with any right the Company reserved for itself to do
so pursuant to Section 2.1 hereof, the Company shall, or shall
cause the Trustee to, give notice of such redemption to holders of
the Securities of such series to be redeemed by mailing, first
class postage prepaid, a notice of such redemption not less than 30
days and not more than 90 days before the date fixed for redemption
of that series to such holders at their last addresses as they
shall appear upon the Security Register, unless a shorter period is
specified in the Securities to be redeemed. Any notice that is
mailed in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the registered holder
receives the notice. In any case, failure duly to give such notice
to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall
not affect the validity of the proceedings for the redemption of
any other Securities of such series or any other series. In the
case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officer’s Certificate evidencing
compliance with any such restriction.
Each
such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that
series are to be redeemed, and shall state that payment of the
redemption price of such Securities to be redeemed will be made at
the office or agency of the Company, upon presentation and
surrender of such Securities, that interest accrued to the date
fixed for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and that the
redemption is from a sinking fund, if such is the case. If less
than all the Securities of a series are to be redeemed, the notice
to the holders of Securities of that series to be redeemed in part
shall specify the particular Securities to be so
redeemed.
In case
any Security is to be redeemed in part only, the notice that
relates to such Security shall state the portion of the principal
amount thereof to be redeemed, and shall state that on and after
the redemption date, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal to
the unredeemed portion thereof will be issued.
(b) If
less than all the Securities of a series are to be redeemed, the
Company shall give the Trustee at least 45 days’ notice
(unless a shorter notice shall be satisfactory to the Trustee) in
advance of the date fixed for redemption as to the aggregate
principal amount of Securities of the series to be redeemed, and
thereupon the Trustee shall select, by lot or in such other manner
as it shall deem appropriate and fair in its discretion and that
may provide for the selection of a portion or portions (equal to
one thousand U.S. dollars ($1,000) or any integral multiple
thereof) of the principal amount of such Securities of a
denomination larger than $1,000, the Securities to be redeemed and
shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part. The
Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by an Officer, instruct the
Trustee or any paying agent to call all or any part of the
Securities of a particular series for redemption and to give notice
of redemption in the manner set forth in this Section, such notice
to be in the name of the Company or its own name as the Trustee or
such paying agent may deem advisable. In any case in which notice
of redemption is to be given by the Trustee or any such paying
agent, the Company shall deliver or cause to be delivered to, or
permit to remain with, the Trustee or such paying agent, as the
case may be, such Security Register, transfer books or other
records, or suitable copies or extracts therefrom, sufficient to
enable the Trustee or such paying agent to give any notice by mail
that may be required under the provisions of this
Section.
Section
3.3 Payment Upon Redemption.
(a) If
the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities of the
series to be redeemed specified in such notice shall become due and
payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the
date fixed for redemption and interest on such Securities or
portions of Securities shall cease to accrue on and after the date
fixed for redemption, unless the Company shall default in the
payment of such redemption price and accrued interest with respect
to any such Security or portion thereof. On presentation and
surrender of such Securities on or after the date fixed for
redemption at the place of payment specified in the notice, said
Securities shall be paid and redeemed at the applicable redemption
price for such series, together with interest accrued thereon to
the date fixed for redemption (but if the date fixed for redemption
is an interest payment date, the interest installment payable on
such date shall be payable to the registered holder at the close of
business on the applicable record date pursuant to Section
2.3).
(b)
Upon presentation of any Security of such series that is to be
redeemed in part only, the Company shall execute and the Trustee
shall authenticate and the office or agency where the Security is
presented shall deliver to the holder thereof, at the expense of
the Company, a new Security of the same series of authorized
denominations in principal amount equal to the unredeemed portion
of the Security so presented.
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Section
3.4 Sinking Fund.
The
provisions of Sections 3.4, 3.5 and 3.6 shall be applicable to any
sinking fund for the retirement of Securities of a series, except
as otherwise specified as contemplated by Section 2.1 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
3.5. 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
3.5 Satisfaction of Sinking Fund Payments with
Securities.
The
Company (i) may deliver Outstanding Securities of a series and (ii)
may apply as a credit Securities of a series 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
3.6 Redemption of Securities for Sinking Fund.
Not
less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory
to the Trustee), the Company will deliver to the Trustee an
Officer’s Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms
of the series, the portion thereof, if any, that is to be satisfied
by delivering and crediting Securities of that series pursuant to
Section 3.5 and the basis for such credit and will, together with
such Officer’s Certificate, deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 3.2 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 3.2. Such notice
having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Section
3.3.
ARTICLE IV
COVENANTS
Section
4.1 Payment of Principal, Premium and Interest.
The
Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest on the Securities
of that series at the time and place and in the manner provided
herein and established with respect to such Securities. Payments of
principal on the Securities may be made at the time provided herein
and established with respect to such Securities by U.S. dollar
check drawn on and mailed to the address of the Securityholder
entitled thereto as such address shall appear in the Security
Register, or U.S. dollar wire transfer to, a U.S. dollar account
(such wire transfer to be made only to a Securityholder of an
aggregate principal amount of Securities of the applicable series
in excess of U.S. $2,000,000 and only if such Securityholder shall
have furnished wire instructions to the Trustee no later than 15
days prior to the relevant payment date). Payments of interest on
the Securities may be made at the time provided herein and
established with respect to such Securities by U.S. dollar check
mailed to the address of the Securityholder entitled thereto as
such address shall appear in the Security Register, or U.S. dollar
wire transfer to, a U.S. dollar account (such a wire transfer to be
made only to a Securityholder of an aggregate principal amount of
Securities of the applicable series in excess of U.S. $2,000,000
and only if such Securityholder shall have furnished wire
instructions in writing to the Security Registrar and the Trustee
no later than 15 days prior to the relevant payment
date.
Section
4.2 Maintenance of Office or Agency.
So long
as any series of the Securities remain Outstanding, the Company
agrees to maintain an office or agency with respect to each such
series and at such other location or locations as may be designated
as provided in this Section 4.2, where (i) Securities of that
series may be presented for payment, (ii) Securities of that series
may be presented as herein above authorized for registration of
transfer and exchange, and (iii) notices and demands to or upon the
Company in respect of the Securities of that series and this
Indenture may be given or served, such designation to continue with
respect to such office or agency until the Company shall, by
written notice signed by any officer authorized to sign an
Officer’s Certificate and delivered to the Trustee, designate
some other office or agency for such purposes or any of them. 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, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all
such presentations, notices and demands. The Company initially
appoints the Corporate Trust Office of the Trustee as its paying
agent with respect to the Securities.
-12-
Section
4.3 Paying Agents.
(a) If
the Company shall appoint one or more paying agents for all or any
series of the Securities, other than the Trustee, the Company will
cause each such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(i)
that it will hold all sums held by it as such agent for the payment
of the principal of (and premium, if any) or interest on the
Securities of that series (whether such sums have been paid to it
by the Company or by any other obligor of such Securities) in trust
for the benefit of the Persons entitled thereto;
(ii)
that it will give the Trustee notice of any failure by the Company
(or by any other obligor of such Securities) to make any payment of
the principal of (and premium, if any) or interest on the
Securities of that series when the same shall be due and
payable;
(iii)
that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such paying agent; and
(iv)
that it will perform all other duties of paying agent as set forth
in this Indenture.
(b) If
the Company shall act as its own paying agent with respect to any
series of the Securities, it will on or before each due date of the
principal of (and premium, if any) or interest on Securities of
that series, set aside, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay such
principal (and premium, if any) or interest so becoming due on
Securities of that series until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of such action, or any failure (by it
or any other obligor on such Securities) to take such action.
Whenever the Company shall have one or more paying agents for any
series of Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest on any Securities of
that series, deposit with the paying agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due,
such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such
paying agent is the Trustee) the Company will promptly notify the
Trustee of this action or failure so to act.
(c)
Notwithstanding anything in this Section to the contrary, (i) the
agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.5, and (ii) 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
direct any paying agent to pay, to the Trustee all sums held in
trust by the Company or such paying agent, such sums to be held by
the Trustee upon the same terms and conditions as those upon which
such sums were held by the Company or such paying agent; and, upon
such payment by the Company or any paying agent to the Trustee, the
Company or such paying agent shall be released from all further
liability with respect to such money.
Section
4.4 Appointment to Fill Vacancy in Office of Trustee.
The
Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section
7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
Section
4.5 Compliance with Consolidation Provisions.
The
Company will not, while any of the Securities remain Outstanding,
consolidate with or merge into any other Person, in either case
where the Company is not the survivor of such transaction, or sell
or convey all or substantially all of its property to any other
Person unless the provisions of Article X hereof are complied
with.
ARTICLE V
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE
Section
5.1 Company to Furnish Trustee Names and Addresses of
Securityholders.
The
Company will furnish or cause to be furnished to the Trustee (a)
within 15 days after each regular record date (as defined in
Section 2.3) a list, in such form as the Trustee may reasonably
require, of the names and addresses of the holders of each series
of Securities as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to furnish such
list at any time that the list shall not differ in any respect from
the most recent list furnished to the Trustee by the Company and
(b) at such other times as the Trustee may request in writing
within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished; provided,
however, that, in either case, no such list need be furnished for
any series for which the Trustee shall be the Security
Registrar.
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Section 5.2 Preservation Of Information;
Communications With Securityholders.
(a) The
Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished
to it as provided in Section 5.1 and as to the names and addresses
of holders of Securities received by the Trustee in its capacity as
Security Registrar (if acting in such capacity).
(b) The
Trustee may destroy any list furnished to it as provided in Section
5.1 upon receipt of a new list so furnished.
(c)
Securityholders may communicate as provided in Section 312(b) of
the Trust Indenture Act with other Securityholders with respect to
their rights under this Indenture or under the Securities, and, in
connection with any such communications, the Trustee shall satisfy
its obligations under Section 312(b) of the Trust Indenture Act in
accordance with the provisions of Section 312(b) of the Trust
Indenture Act.
Section
5.3 Reports by the Company.
The
Company covenants and agrees to provide (which delivery may be via
electronic mail) to the Trustee, after the Company files the same
with the Securities and Exchange 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 Securities
and Exchange Commission may from time to time by rules and
regulations prescribe) that the Company files with the Securities
and Exchange Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act; provided, however, the Company shall not be
required to deliver to the Trustee any materials for which the
Company has sought and received confidential treatment by the
Securities and Exchange Commission; and provided further, so long
as such filings by the Company are available on the Securities and
Exchange Commission’s Electronic Data Gathering, Analysis and
Retrieval System (XXXXX), such filings shall be deemed to have been
filed with the Trustee for purposes of this Section 5.3 without any
further action required by the Company.
Section
5.4 Reports by the Trustee.
(a) If
required by Section 313(a) of the Trust Indenture Act, the Trustee,
within sixty (60) days after each May 1, shall transmit by mail,
first class postage prepaid, to the Securityholders, as their names
and addresses appear upon the Security Register, a brief report
dated as of such May 1, which complies with Section 313(a) of the
Trust Indenture Act.
(b) The
Trustee shall comply with Section 313(b) and 313(c) of the Trust
Indenture Act.
(c) A
copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with
each securities exchange upon which any Securities are listed (if
so listed) and also with the Securities and Exchange Commission.
The Company agrees to notify the Trustee when any Securities become
listed on any securities exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
Section
6.1 Events of Default.
(a)
Whenever used herein with respect to Securities of a particular
series, “Event of Default” means any one or more of the
following events that has occurred and is continuing:
(i) the
Company defaults in the payment of any installment of interest upon
any of the Securities of that series, as and when the same shall
become due and payable, and such default continues for a period of
90 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of any
indenture supplemental hereto shall not constitute a default in the
payment of interest for this purpose;
(ii)
the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Securities of that series as and
when the same shall become due and payable whether at maturity,
upon redemption, by declaration or otherwise, or in any payment
required by any sinking or analogous fund established with respect
to that series; provided, however, that a valid extension of the
maturity of such Securities in accordance with the terms of any
indenture supplemental hereto shall not constitute a default in the
payment of principal or premium, if any;
(iii)
the Company fails to observe or perform any other of its covenants
or agreements with respect to that series contained in this
Indenture or otherwise established with respect to that series of
Securities pursuant to Section 2.1 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely
for the benefit of one or more series of Securities other than such
series) for a period of 90 days after the date on which written
notice of such failure, requiring the same to be remedied and
stating that such notice is a “Notice of Default”
hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by
the holders of at least 25% in principal amount of the Securities
of that series at the time Outstanding;
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(iv)
the Company pursuant to or within the meaning of any Bankruptcy Law
(i) commences a voluntary case, (ii) consents to the entry of an
order for relief against it in an involuntary case, (iii) consents
to the appointment of a Custodian of it or for all or substantially
all of its property or (iv) makes a general assignment for the
benefit of its creditors; or
(v) a
court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company for all
or substantially all of its property or (iii) orders the
liquidation of the Company, and the order or decree remains
unstayed and in effect for 90 days.
(b) In
each and every such case (other than an Event of Default specified
in clause (4) or clause (5) above), unless the principal of all the
Securities of that series shall have already become due and
payable, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Securities of that series then
Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Securityholders), may declare the
principal of (and premium, if any, on) and accrued and unpaid
interest on all the Securities of that series to be due and payable
immediately, and upon any such declaration the same shall become
and shall be immediately due and payable. If an Event of Default
specified in clause (4) or clause (5) above occurs, the principal
of and accrued and unpaid interest on all the Securities of that
series shall automatically be immediately due and payable without
any declaration or other act on the part of the Trustee or the
holders of the Securities.
(c) At
any time after the principal of (and premium, if any, on) and
accrued and unpaid interest on the Securities of that series shall
have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the holders of a majority in
aggregate principal amount of the Securities of that series then
Outstanding hereunder, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its
consequences if: (i) the Company has paid or deposited with the
Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of that series and the principal
of (and premium, if any, on) any and all Securities of that series
that shall have become due otherwise than by acceleration (with
interest upon such principal and premium, if any, and, to the
extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed
in the Securities of that series to the date of such payment or
deposit) and the amount payable to the Trustee under Section 7.6,
and (ii) any and all Events of Default under the Indenture with
respect to such series, other than the nonpayment of principal on
(and premium, if any, on) and accrued and unpaid interest on
Securities of that series that shall not have become due by their
terms, shall have been remedied or waived as provided in Section
6.6.
No such
rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent
thereon.
(d) In
case the Trustee shall have proceeded to enforce any right with
respect to Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of
such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such
case, subject to any determination in such proceedings, the Company
and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers
of the Company and the Trustee shall continue as though no such
proceedings had been taken.
Section
6.2 Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The
Company covenants that (i) in case it shall default in the payment
of any installment of interest on any of the Securities of a
series, or in any payment required by any sinking or analogous fund
established with respect to that series as and when the same shall
have become due and payable, and such default shall have continued
for a period of 90 days, or (ii) in case it shall default in the
payment of the principal of (or premium, if any, on) any of the
Securities of a series when the same shall have become due and
payable, whether upon maturity of the Securities of a series or
upon redemption or upon declaration or otherwise then, upon demand
of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Securities of that series, the whole
amount that then shall have been become due and payable on all such
Securities for principal (and premium, if any) or interest, or
both, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such
interest is enforceable under applicable law) upon overdue
installments of interest at the rate per annum expressed in the
Securities of that series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, and the amount payable to the Trustee under Section
7.6.
(b) If
the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so
due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or
final decree against the Company or other obligor upon the
Securities of that series and collect the moneys adjudged or
decreed to be payable in the manner provided by law or equity out
of the property of the Company or other obligor upon the Securities
of that series, wherever situated.
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(c) In
case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial
proceedings affecting the Company, or its creditors or property,
the Trustee shall have power to intervene in such proceedings and
take any action therein that may be permitted by the court and
shall (except as may be otherwise provided by law) be entitled to
file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee
and of the holders of Securities of such series allowed for the
entire amount due and payable by the Company under the Indenture at
the date of institution of such proceedings and for any additional
amount that may become due and payable by the Company after such
date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the
same after the deduction of the amount payable to the Trustee under
Section 7.6; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of
Securities of such series to make such payments to the Trustee,
and, in the event that the Trustee shall consent to the making of
such payments directly to such Securityholders, to pay to the
Trustee any amount due it under Section 7.6.
(d) All
rights of action and of asserting claims under this Indenture, or
under any of the terms established with respect to Securities of
that series, may be enforced by the Trustee without the possession
of any of such Securities, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or
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 payment to the Trustee of any amounts
due under Section 7.6, be for the ratable benefit of the holders of
the Securities of such series.
In case
of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement
contained in the Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by
law.
Nothing
contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities of that series or the
rights of any holder thereof or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such
proceeding.
Section
6.3 Application of Moneys Collected.
Any
moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Securities shall be applied in
the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such moneys on account of principal
(or premium, if any) or interest, upon presentation of the
Securities of that series, and notation thereon of the payment, if
only partially paid, and upon surrender thereof if fully
paid:
FIRST:
To the payment of all indebtedness of the Company to which such
series of Securities is subordinated to the extent required by
Section 7.6 and Article XIV;
SECOND:
To the payment of the amounts then due and unpaid upon Securities
of such series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively;
and
THIRD:
To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
Section
6.4 Limitation on Suits.
No
holder of any Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless (i) such
holder previously shall have given to the Trustee written notice of
an Event of Default and of the continuance thereof with respect to
the Securities of such series specifying such Event of Default, as
hereinbefore provided; (ii) the holders of not less than 25% in
aggregate principal amount of the Securities of such series then
Outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as
Trustee hereunder; (iii) such holder or holders shall have offered
to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or
thereby; (iv) the Trustee for 90 days after its receipt of such
notice, request and offer of indemnity, shall have failed to
institute any such action, suit or proceeding and (v) during such
90 day period, the holders of a majority in principal amount of the
Securities of that series do not give the Trustee a direction
inconsistent with the request.
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Notwithstanding
anything contained herein to the contrary or any other provisions
of this Indenture, the right of any holder of any Security to
receive payment of the principal of (and premium, if any) and
interest on such Security, as therein provided, on or after the
respective due dates expressed in such Security (or in the case of
redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates
or redemption date, shall not be impaired or affected without the
consent of such holder and by accepting a Security hereunder it is
expressly understood, intended and covenanted by the taker and
holder of every Security of such series with every other such taker
and holder and the Trustee, that no one or more holders of
Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders
of any other of such Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce
any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all
holders of Securities of such series. For the protection and
enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Section
6.5 Rights and Remedies Cumulative; Delay or Omission Not
Waiver.
(a)
Except as otherwise provided in Section 2.7, all powers and
remedies given by this Article to the Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies
available to the Trustee or the holders of the Securities, by
judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such
Securities.
(b) No
delay or omission of the Trustee or of any holder of any of the
Securities to exercise any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any
such right or power, or shall be construed to be a waiver of any
such default or an acquiescence therein; and, subject to the
provisions of Section 6.4, every power and remedy given by this
Article or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Securityholders.
Section
6.6 Control by Securityholders.
The
holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in
accordance with Section 8.4, shall have the right to direct the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to such series; provided,
however, that such direction shall not be in conflict with any rule
of law or with this Indenture. Subject to the provisions of Section
7.1, 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, subject to the Trustee’s duties under the Trust
Indenture Act, would involve the Trustee in personal liability or
might be unduly prejudicial to the Securityholders not involved in
the proceeding. The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding
affected thereby, determined in accordance with Section 8.4, may on
behalf of the holders of all of the Securities of such series waive
any past default in the performance of any of the covenants
contained herein or established pursuant to Section 2.1 with
respect to such series and its consequences, except a default in
the payment of the principal of, or premium, if any, or interest
on, any of the Securities of that series as and when the same shall
become due by the terms of such Securities otherwise than by
acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and
principal and any premium has been deposited with the Trustee (in
accordance with Section 6.1(c)). Upon any such waiver, the default
covered thereby shall be deemed to be cured for all purposes of
this Indenture and the Company, the Trustee and the holders of the
Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right
consequent thereon.
Section
6.7 Undertaking to Pay Costs.
All
parties to this Indenture agree, and each holder of any Securities
by such holder’s 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 or omitted by
it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal
amount of the Outstanding Securities of any series, or to any suit
instituted by any Securityholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any
Security of such series, on or after the respective due dates
expressed in such Security or established pursuant to this
Indenture.
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ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.1 Certain Duties and Responsibilities
of Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series
that may have occurred, shall undertake to perform with respect to
the Securities of such series such duties and only such duties as
are specifically set forth in this Indenture, and no implied
covenants shall be read into this Indenture against the Trustee. In
case an Event of Default with respect to the Securities of a series
has occurred (that has not been cured or waived), the Trustee shall
exercise with respect to Securities of that series 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 man would
exercise or use under the circumstances in the conduct of his own
affairs.
(b) 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)
prior to the occurrence of an Event of Default with respect to the
Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have
occurred: (A) the duties and obligations of the Trustee shall with
respect to the Securities of such series be determined solely by
the express provisions of this Indenture, and the Trustee shall not
be liable with respect to the Securities of such series except for
the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and (B) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to the Securities of such series
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
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 that by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this
Indenture;
(2) the
Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(3) the
Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal
amount of the Securities of any series at the time Outstanding
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 that series; and
(4)
none of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers if there
is reasonable ground for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of
this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
Section
7.2 Certain Rights of Trustee.
Except
as otherwise provided in Section 7.1:
(a) The
Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other paper or document believed by it
to be genuine and to have been signed or presented by the proper
party or parties;
(b) Any
request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by any authorized
officer of the Company (unless other evidence in respect thereof is
specifically prescribed herein);
(c) The
Trustee may consult with counsel and the written advice of such
counsel or, if requested, any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken or suffered or omitted hereunder in good faith and in
reliance thereon;
(d) The
Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions
of this Indenture, unless such Securityholders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with respect
to a series of the Securities (that has not been cured or waived),
to exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and to use the
same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his
own affairs;
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(e) The
Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(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, consent, order,
approval, bond, security, or other papers or documents, unless
requested in writing so to do by the holders of not less than a
majority in principal amount of the Outstanding Securities of the
particular series affected thereby (determined as provided in
Section 8.4); provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so
proceeding. The reasonable expense of every such examination shall
be paid by the Company or, if paid by the Trustee, shall be repaid
by the Company upon demand; and
(g) The
Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
In
addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (1) any Event of Default
occurring pursuant to Sections 6.1(a)(i) and 6.1(a)(ii) or (2) any
Default or Event of Default of which the Trustee shall have
received written notification in the manner set forth in this
Indenture or a Responsible Officer of the Trustee shall have
obtained actual knowledge. Delivery of reports, information and
documents to the Trustee under Section 5.3 is for informational
purposes only and the information and the Trustee’s receipt
of the foregoing shall not constitute constructive notice of any
information contained therein, or determinable from information
contained therein including the Company’s compliance with any
of their covenants thereunder (as to which the Trustee is entitled
to rely exclusively on an Officer’s
Certificate).
Section
7.3 Trustee Not Responsible for Recitals or Issuance or
Securities.
(a) The
recitals contained herein and in the Securities shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The
Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities.
(c) The
Trustee shall not be accountable for the use or application by the
Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over
by the Trustee in accordance with any provision of this Indenture
or established pursuant to Section 2.1, or for the use or
application of any moneys received by any paying agent other than
the Trustee.
Section
7.4 May Hold Securities.
The
Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee
of Securities with the same rights it would have if it were not
Trustee, paying agent or Security Registrar.
Section
7.5 Moneys Held in Trust.
Subject
to the provisions of Section 11.5, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not
be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on any
moneys received by it hereunder except such as it may agree with
the Company to pay thereon.
Section
7.6 Compensation and Reimbursement.
(a) The
Company covenants and agrees to pay to the Trustee, and the Trustee
shall be entitled to, such reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of
a trustee of an express trust) as the Company and the Trustee may
from time to time agree in writing, for all services rendered by it
in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the
Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses
and disbursements of its counsel and of all Persons not regularly
in its employ), except any such expense, disbursement or advance as
may arise from its negligence or bad faith and except as the
Company and Trustee may from time to time agree in writing. The
Company also covenants to indemnify the Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust,
including the reasonable costs and expenses of defending itself
against any claim of liability in the premises.
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(b) The
obligations of the Company under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for
reasonable expenses, disbursements and advances shall constitute
indebtedness of the Company to which the Securities are
subordinated. Such additional indebtedness shall be secured by a
lien prior to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in
trust for the benefit of the holders of particular
Securities.
Section
7.7 Reliance on Officer’s Certificate.
Except
as otherwise provided in Section 7.1, whenever in the
administration of the provisions of this Indenture the Trustee
shall deem it reasonably necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to
take any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be
deemed to be conclusively proved and established by an
Officer’s Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part
of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions
of this Indenture upon the faith thereof.
Section
7.8 Disqualification; Conflicting Interests.
If the
Trustee 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.
Section
7.9 Corporate Trustee Required; Eligibility.
There
shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of
America or any state or territory thereof or of the District of
Columbia, or a corporation or other Person permitted to act as
trustee by the Securities and Exchange Commission, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by
federal, state, territorial, or District of Columbia
authority.
If such
corporation or other Person 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
other Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and
with the effect specified in Section 7.10.
Section
7.10 Resignation and Removal; Appointment of
Successor.
(a) The
Trustee or any successor hereafter appointed may at any time resign
with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses appear
upon the Security Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee
with respect to Securities of such series by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of
which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days
after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to Securities of
such series, or any Securityholder of that series who has been a
bona fide holder of a Security or Securities for at least six
months may on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee.
Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In
case at any time any one of the following shall occur:
(1) the
Trustee shall fail to comply with the provisions of Section 7.8
after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or
Securities for at least six months; or
(2) the
Trustee shall cease to be eligible in accordance with the
provisions of Section 7.9 and shall fail to resign after written
request therefor by the Company or by any such Securityholder;
or
(3) the
Trustee shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall
be appointed or consented to, or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation; then,
in any such case, the Company may remove the Trustee with respect
to all Securities and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or any
Securityholder who has been a bona fide holder of a Security or
Securities for at least six months may, on behalf of that holder
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of
a successor trustee. Such court may thereupon after such notice, if
any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
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(c) The
holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time
remove the Trustee with respect to such series by so notifying the
Trustee and the Company and may appoint a successor Trustee for
such series with the consent of the Company.
(d) Any
resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series
pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee
as provided in Section 7.11.
(e) Any
successor trustee appointed pursuant to this Section may be
appointed with respect to the Securities of one or more series or
all of such series, and at any time there shall be only one Trustee
with respect to the Securities of any particular
series.
Section
7.11 Acceptance of Appointment By Successor.
(a) In
case of the appointment hereunder of a successor trustee with
respect to all Securities, every such successor trustee so
appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee
shall become effective 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; but, on
the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor trustee all the rights,
powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and
money held by such retiring Trustee hereunder.
(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 (i) 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, (ii) 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 (iii) 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, that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee
and that no Trustee shall be responsible for 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, the 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 shall accept its appointment unless at the time
of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e)
Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage
prepaid, to the Securityholders, as their names and addresses
appear upon the Security Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to
be transmitted at the expense of the Company.
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Section
7.12 Merger, Conversion, Consolidation or Succession to
Business.
Any
corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the corporate
trust business of the Trustee, including the administration of the
trust created by this Indenture, shall be the successor of the
Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.8 and eligible under
the provisions of Section 7.9, without the execution or filing of
any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case
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
7.13 Preferential Collection of Claims Against the
Company.
The
Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section
311(b) of the Trust Indenture Act. A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the Trust
Indenture Act to the extent included therein.
Section
7.14 Notice of Default
If any
Default or any Event of Default occurs and is continuing and if
such Default or Event of Default is known to a Responsible Officer
of the Trustee, the Trustee shall mail to each Securityholder in
the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act notice of the Default or Event of Default
within the earlier of 90 days after it occurs and 30 days after it
is known to a Responsible Officer of the Trustee or written notice
of it is received by the Trustee, unless such Default or Event of
Default has been cured; provided, however, that, except in the case
of a default in the payment of the principal of (or premium, if
any) or interest on any Security, 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 and/or
Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the
Securityholders.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
Section 8.1 Evidence of Action by
Securityholders.
Whenever in this
Indenture it is provided that the holders of a majority or
specified percentage in aggregate principal amount of the
Securities of a particular series may take any action (including
the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that
at the time of taking any such action the holders of such majority
or specified percentage of that series have joined therein may be
evidenced by any instrument or any number of instruments of similar
tenor executed by such holders of Securities of that series in
person or by agent or proxy appointed in writing.
If the
Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver
or other action, the Company may, at its option, as evidenced by an
Officer’s Certificate, fix in advance a record date for such
series for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other action, but the Company shall have no obligation to
do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action
may be given before or after the record date, but only the
Securityholders of record at the close of business on the record
date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of
Outstanding Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
Outstanding Securities of that series shall be computed as of the
record date; provided, however, that no such authorization,
agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after
the record date.
Section
8.2 Proof of Execution by Securityholders.
Subject
to the provisions of Section 7.1, proof of the execution of any
instrument by a Securityholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any
Person of any of the Securities shall be sufficient if made in the
following manner:
(a) The
fact and date of the execution by any such Person of any instrument
may be proved in any reasonable manner acceptable to the
Trustee.
(b) The
ownership of Securities shall be proved by the Security Register of
such Securities or by a certificate of the Security Registrar
thereof.
The
Trustee may require such additional proof of any matter referred to
in this Section as it shall deem necessary.
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Section
8.3 Who May be Deemed Owners.
Prior
to the due presentment for registration of transfer of any
Security, the Company, the Trustee, any paying agent and any
Security Registrar may deem and treat the Person in whose name such
Security shall be registered upon the books of the Company as the
absolute owner of such Security (whether or not such Security shall
be overdue and notwithstanding any notice of ownership or writing
thereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal of,
premium, if any, and (subject to Section 2.3) interest on such
Security and for all other purposes; and neither the Company nor
the Trustee nor any paying agent nor any Security Registrar shall
be affected by any notice to the contrary.
Section
8.4 Certain Securities Owned by Company Disregarded.
In
determining whether the holders of the requisite aggregate
principal amount of Securities of a particular series have
concurred in any direction, consent or waiver under this Indenture,
the Securities of that series that are owned by the Company or any
other obligor on the Securities of that series or by any Person
directly or indirectly controlling or controlled by or under common
control with the Company or any other obligor on the Securities of
that series shall be disregarded and deemed not to be Outstanding
for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Securities
of such series that the Trustee actually knows are so owned shall
be so disregarded. The Securities so owned that have been pledged
in good faith may be regarded as Outstanding for the purposes of
this Section, if the pledgee shall establish to the satisfaction of
the Trustee the pledgee’s right so to act with respect to
such Securities and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In case
of a dispute as to such right, any decision by the Trustee taken
upon the advice of counsel shall be full protection to the
Trustee.
Section
8.5 Actions Binding on Future Securityholders.
At any
time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1, of the taking of any action by the holders
of the majority or percentage in aggregate principal amount of the
Securities of a particular series specified in this Indenture in
connection with such action, any holder of a Security of that
series that is shown by the evidence to be included in the
Securities the holders of which have consented to such action may,
by filing written notice with the Trustee, and upon proof of
holding as provided in Section 8.2, revoke such action so far as
concerns such Security. Except as aforesaid any such action taken
by the holder of any Security shall be conclusive and binding upon
such holder and upon all future holders and owners of such
Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective
of whether or not any notation in regard thereto is made upon such
Security. Any action taken by the holders of the majority or
percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with
such action shall be conclusively binding upon the Company, the
Trustee and the holders of all the Securities of that
series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without the
Consent of Securityholders.
In
addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act
as then in effect), without the consent of the Securityholders, for
one or more of the following purposes:
(a) to
cure any ambiguity, defect, or inconsistency herein or in the
Securities of any series;
(b) to
comply with Article X;
(c) to
provide for uncertificated Securities in addition to or in place of
certificated Securities;
(d) to
add to the covenants, restrictions, conditions or provisions
relating to the Company for the benefit of the holders of all or
any series of Securities (and if such covenants, restrictions,
conditions or provisions are to be for the benefit of less than all
series of Securities, stating that such covenants, restrictions,
conditions or provisions are expressly being included solely for
the benefit of such series), to make the occurrence, or the
occurrence and the continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of
Default, or to surrender any right or power herein conferred upon
the Company;
(e) to
add to, delete from, or revise the conditions, limitations, and
restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set
forth;
(f) to
make any change that does not adversely affect the rights of any
Securityholder in any material respect;
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(g) to
provide for the issuance of and establish the form and terms and
conditions of the Securities of any series as provided in Section
2.1, to establish the form of any certifications required to be
furnished pursuant to the terms of this Indenture or any series of
Securities, or to add to the rights of the holders of any series of
Securities;
(h) to
evidence and provide for the acceptance of appointment hereunder by
a successor trustee; or
(i) to
comply with any requirements of the Securities and Exchange
Commission or any successor in connection with the qualification of
this Indenture under the Trust Indenture Act.
The
Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not be obligated to enter into any
such supplemental indenture that affects the Trustee’s own
rights, duties or immunities under this Indenture or
otherwise.
Any
supplemental indenture authorized by the provisions of this Section
may be executed by the 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 9.2.
Section
9.2 Supplemental Indentures With Consent of
Securityholders.
With
the consent (evidenced as provided in Section 8.1) of the holders
of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture
or indentures at the time Outstanding, the Company, when authorized
by a Board Resolution, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act
as then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any
manner not covered by Section 9.1 the rights of the holders of the
Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of
the holders of each Security then Outstanding and affected thereby,
(a) extend the fixed maturity of any Securities of any series, or
reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof or (b) reduce the aforesaid
percentage of Securities, the holders of which are required to
consent to any such supplemental indenture.
It
shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the
particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance
thereof.
Section
9.3 Effect of Supplemental Indentures.
Upon
the execution of any supplemental indenture pursuant to the
provisions of this Article or of Section 10.1, this Indenture
shall, with respect to such series, be and be deemed to be modified
and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Company and the holders of
Securities of the series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for
any and all purposes.
Section
9.4 Securities Affected by Supplemental Indentures.
Securities of any
series affected by a supplemental indenture, authenticated and
delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.1, may
bear a notation in form approved by the Company, provided such form
meets the requirements of any securities exchange upon which such
series may be listed, as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities of that series so modified as to conform, in the opinion
of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for
the Securities of that series then Outstanding.
Section
9.5 Execution of Supplemental Indentures.
Upon
the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of
Securityholders required to consent thereto as aforesaid, the
Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects
the Trustee’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its
discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of
Section 7.1, may receive an Officer’s Certificate or, if
requested, an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article is
authorized or permitted by, and conforms to, the terms of this
Article and that it is proper for the Trustee under the provisions
of this Article to join in the execution thereof; provided,
however, that such Officer’s Certificate or Opinion of
Counsel need not be provided in connection with the execution of a
supplemental indenture that establishes the terms of a series of
Securities pursuant to Section 2.1 hereof.
Promptly after the
execution by the Company and the Trustee of any supplemental
indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice,
setting forth in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected thereby as
their names and addresses appear upon the Security Register. Any
failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
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ARTICLE X
SUCCESSOR ENTITY
Section 10.1 Company May Consolidate,
Etc.
Except
as provided pursuant to Section 2.1 pursuant to a Board Resolution,
and set forth in an Officer’s Certificate, or established in
one or more indentures supplemental to this Indenture, nothing
contained in this Indenture shall prevent any consolidation or
merger of the Company with or into any other Person (whether or not
affiliated with the Company) or successive consolidations or
mergers in which the Company or its successor or successors shall
be a party or parties, or shall prevent any sale, conveyance,
transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an
entirety, to any other corporation (whether or not affiliated with
the Company or its successor or successors) authorized to acquire
and operate the same; provided, however, (a) the Company hereby
covenants and agrees that, upon any such consolidation or merger
(in each case, if the Company is not the survivor of such
transaction), sale, conveyance, transfer or other disposition, the
due and punctual payment of the principal of (premium, if any) and
interest on all of the Securities of all series in accordance with
the terms of each series, according to their tenor, and the due and
punctual performance and observance of all the covenants and
conditions of this Indenture with respect to each series or
established with respect to such series pursuant to Section 2.1 to
be kept or performed by the Company shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of
the Trust Indenture Act, as then in effect) reasonably satisfactory
in form to the Trustee executed and delivered to the Trustee by the
entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have acquired
such property and (b) in the event that the Securities of any
series then Outstanding are convertible into or exchangeable for
shares of common stock or other securities of the Company, such
entity shall, by such supplemental indenture, make provision so
that the Securityholders of Securities of that series shall
thereafter be entitled to receive upon conversion or exchange of
such Securities the number of securities or property to which a
holder of the number of shares of common stock or other securities
of the Company deliverable upon conversion or exchange of those
Securities would have been entitled had such conversion or exchange
occurred immediately prior to such consolidation, merger, sale,
conveyance, transfer or other disposition.
Section
10.2 Successor Entity Substituted.
(a) In
case of any such consolidation, merger, sale, conveyance, transfer
or other disposition and upon the assumption by the successor
entity by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the obligations
set forth under Section 10.1 on all of the Securities of all series
Outstanding, such successor entity shall succeed to and be
substituted for the Company with the same effect as if it had been
named as the Company herein, and thereupon the predecessor
corporation shall be relieved of all obligations and covenants
under this Indenture and the Securities.
(b) In
case of any such consolidation, merger, sale, conveyance, transfer
or other disposition, such changes in phraseology and form (but not
in substance) may be made in the Securities thereafter to be issued
as may be appropriate.
(c)
Nothing contained in this Article shall require any action by the
Company in the case of a consolidation or merger of any Person into
the Company where the Company is the survivor of such transaction,
or the acquisition by the Company, by purchase or otherwise, of all
or any part of the property of any other Person (whether or not
affiliated with the Company).
Section
10.3 Evidence of Consolidation, Etc.
The
Trustee, subject to the provisions of Section 7.1, may receive an
Officer’s Certificate and, if requested, an Opinion of
Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or other disposition, and any such
assumption, comply with the provisions of this
Article.
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.1 Satisfaction and Discharge of
Indenture.
If at
any time: (a) the Company shall have delivered to the Trustee for
cancellation all Securities of a series theretofore authenticated
and not delivered to the Trustee for cancellation (other than any
Securities that shall have been destroyed, lost or stolen and that
shall have been replaced or paid as provided in Section 2.7 and
Securities for whose payment money or Governmental Obligations have
theretofore been deposited in trust or segregated and held in trust
by the Company and thereupon repaid to the Company or discharged
from such trust, as provided in Section 11.5); or (b) all such
Securities of a particular series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are
by their terms to become due and payable within one year or are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption,
and the Company shall deposit or cause to be deposited with the
Trustee as trust funds the entire amount in moneys or Governmental
Obligations or a combination thereof, sufficient in the opinion of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay at maturity or upon redemption all Securities of
that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall
also pay or cause to be paid all other sums payable hereunder with
respect to such series by the Company then this Indenture shall
thereupon cease to be of further effect with respect to such series
except for the provisions of Sections 2.3, 2.5, 2.7, 4.1, 4.2, 4.3
and 7.10, that shall survive until the date of maturity or
redemption date, as the case may be, and Sections 7.6 and 11.5,
that shall survive to such date and thereafter, and the Trustee, on
demand of the Company and at the cost and expense of the Company
shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to such
series.
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Section
11.2 Discharge of Obligations.
If at
any time all such Securities of a particular series not heretofore
delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.1 shall have been paid
by the Company by depositing irrevocably with the Trustee as trust
funds moneys or an amount of Governmental Obligations sufficient to
pay at maturity or upon redemption all such Securities of that
series not theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption,
as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company with
respect to such series, then after the date such moneys or
Governmental Obligations, as the case may be, are deposited with
the Trustee the obligations of the Company under this Indenture
with respect to such series shall cease to be of further effect
except for the provisions of Sections 2.3, 2.5, 2.7, 4,01, 4.2,
4,03, 7.6, 7.10 and 11.5 hereof that shall survive until such
Securities shall mature and be paid.
Thereafter,
Sections 7.6 and 11.5 shall survive.
Section
11.3 Deposited Moneys to be Held in Trust.
All
moneys or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.1 or 11.2 shall be held in trust and shall
be available for payment as due, either directly or through any
paying agent (including the Company acting as its own paying
agent), to the holders of the particular series of Securities for
the payment or redemption of which such moneys or Governmental
Obligations have been deposited with the Trustee.
Section
11.4 Payment of Moneys Held by Paying Agents.
In
connection with the satisfaction and discharge of this Indenture
all moneys or Governmental Obligations then held by any paying
agent under the provisions of this Indenture shall, upon demand of
the Company, be paid to the Trustee and thereupon such paying agent
shall be released from all further liability with respect to such
moneys or Governmental Obligations.
Section
11.5 Repayment to Company.
Any
moneys or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by the Company, in trust for payment
of principal of or premium, if any, or interest on the Securities
of a particular series that are not applied but remain unclaimed by
the holders of such Securities for at least two years after the
date upon which the principal of (and premium, if any) or interest
on such Securities shall have respectively become due and payable,
or such other shorter period set forth in applicable escheat or
abandoned or unclaimed property law, shall be repaid to the Company
on May 31 of each year or upon the Company’s request or (if
then held by the Company) shall be discharged from such trust; and
thereupon the paying agent and the Trustee shall be released from
all further liability with respect to such moneys or Governmental
Obligations, and the holder of any of the Securities entitled to
receive such payment shall thereafter, as a general creditor, look
only to the Company for the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS
Section 12.1 No Recourse.
No
recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or
future as such, of the Company or of any predecessor or successor
corporation, either directly or through the Company or any such
predecessor or successor corporation, 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, 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 predecessor or 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 implied therefrom;
and that any and all such personal liability of every name and
nature, 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 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 such Securities.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Effect on Successors and
Assigns.
All the
covenants, stipulations, promises and agreements in this Indenture
made by or on behalf of the Company shall bind its successors and
assigns, whether so expressed or not.
Section 13.2 Actions by
Successor.
Any act
or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer
of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful successor of the
Company.
Section
13.3 Surrender of Company Powers.
The
Company by instrument in writing executed by authority of its Board
of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company, and thereupon such power so
surrendered shall terminate both as to the Company and as to any
successor corporation.
Section
13.4 Notices.
Except
as otherwise expressly provided herein, any notice, request or
demand that by any provision of this Indenture is required or
permitted to be given, made or served by the Trustee or by the
holders of Securities or by any other Person pursuant to this
Indenture to or on the Company may be given or served by being
deposited in first class mail, postage prepaid, addressed (until
another address is filed in writing by the Company with the
Trustee), as follows:
Any
notice, election, request or demand by the Company or any
Securityholder or by any other Person pursuant to this Indenture to
or upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or made in writing at the
Corporate Trust Office of the Trustee.
Section
13.5 Governing Law.
This
Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said
State, except to the extent that the Trust Indenture Act is
applicable.
Section
13.6 Treatment of Securities as Debt.
It is
intended that the Securities will be treated as indebtedness and
not as equity for federal income tax purposes. The provisions of
this Indenture shall be interpreted to further this
intention.
Section
13.7 Certificates and Opinions as to Conditions
Precedent.
(a)
Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officer’s Certificate
stating that all conditions precedent provided for in this
Indenture (other than the certificate to be delivered pursuant to
Section 13.12) relating to the proposed action have been complied
with and, if requested, an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or
opinion need be furnished.
(b)
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a
condition or covenant in this Indenture shall include (i) a
statement that the Person making such certificate or opinion has
read such covenant or condition; (ii) 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; (iii) a statement that, in the opinion of such Person, he
has made such examination or investigation as is reasonably
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and (iv) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied
with.
Section
13.8 Payments on Business Days.
Except
as provided pursuant to Section 2.1 pursuant to a Board Resolution,
and set forth in an Officer’s Certificate, or established in
one or more indentures supplemental to this Indenture, in any case
where the date of maturity of interest or principal of any Security
or the date of redemption of any Security shall not be a Business
Day, then payment of interest or principal (and premium, if any)
may be made on the next succeeding Business Day with the same force
and effect as if made on the nominal date of maturity or
redemption, and no interest shall accrue for the period after such
nominal date.
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Section
13.9 Conflict with Trust Indenture Act.
If and
to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to
317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
Section
13.10 Counterparts.
This
Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
Section
13.11 Separability.
In case
any one or more of the provisions contained in this Indenture or in
the Securities of any series shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other
provisions of this Indenture or of such Securities, but this
Indenture and such Securities shall be construed as if such invalid
or illegal or unenforceable provision had never been contained
herein or therein.
Section
13.12 Compliance Certificates.
The
Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year during which any Securities of any series were
outstanding, an officer’s certificate stating whether or not
the signers know of any Default or Event of Default that occurred
during such fiscal year. Such certificate shall contain a
certification from the principal executive officer, principal
financial officer or principal accounting officer of the Company
that a review has been conducted of the activities of the Company
and the Company’s performance under this Indenture and that
the Company has complied with all conditions and covenants under
this Indenture. For purposes of this Section 13.12, such compliance
shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. If the officer
of the Company signing such certificate has knowledge of such a
Default or Event of Default, the certificate shall describe any
such Default or Event of Default and its status.
ARTICLE XIV
SUBORDINATION OF SECURITIES
Section 14.1 Subordination
Terms.
The
payment by the Company of the principal of, premium, if any, and
interest on any series of Securities issued hereunder shall be
subordinated to the extent set forth in an indenture supplemental
hereto relating to such series.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above
written.
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By:
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Name:
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Title:
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[TRUSTEE],
as Trustee
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By:
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Name:
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Title:
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