PRIMUS GUARANTY, LTD., Issuer and DEUTSCHE BANK TRUST COMPANY AMERICAS, Trustee INDENTURE Dated as of December 27, 2006 Senior Securities
PRIMUS
GUARANTY, LTD.,
Issuer
and
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
Trustee
______________________
Dated as
of December 27, 2006
______________________
Senior
Securities
Primus
Guaranty, Ltd.
Certain
Sections of this Indenture relating to
Sections
3.10 through 3.18, inclusive, of the
Trust
Indenture Act of 1939:
|
Act
Section |
Indenture
Section |
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|
§
310 |
(a)(1)
|
6.10
|
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|
(a)(2)
|
6.10
|
|||
|
(a)(3)
|
Not
Applicable |
|||
|
(a)(4)
|
Not
Applicable |
|||
|
(a)(5)
|
6.10
|
|||
|
(b)
|
6.08
|
|||
|
6.10
|
||||
|
(c)
|
Not
Applicable |
|||
|
§
311 |
(a)
|
6.11
|
||
|
(b)
|
6.11
|
|||
|
(c)
|
Not
Applicable |
|||
|
§
312 |
(a)
|
7.01
|
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|
7.02
|
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|
(b)
|
7.02
|
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|
(c)
|
7.02
|
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|
§
313 |
(a)
|
6.06
|
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|
7.03
|
||||
|
(b)
|
6.06
|
|||
|
7.03
|
||||
|
(c)
|
6.06
|
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|
7.03
|
||||
|
(d)
|
7.03
|
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|
§
314 |
(a)
|
7.04
|
||
|
(a)(4)
|
1.01
|
|||
|
10.06
|
||||
|
(b)
|
Not
Applicable |
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|
(c)(1)
|
10.2
|
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|
(c)(2)
|
10.2
|
|||
|
(c)(3)
|
Not
Applicable |
|||
|
(d)
|
Not
Applicable |
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|
(e)
|
10.2
|
|||
|
§
315 |
(a)
|
6.01
|
||
|
(b)
|
6.05
|
|||
|
(c)
|
6.01
|
|||
|
(d)
|
6.01
|
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|
(e)
|
5.14
|
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|
§
316 |
(a)
|
10.1
|
||
|
(a)(1)(A)
|
5.02
|
|||
|
5.12
|
||||
|
(a)(1)(B)
|
5.13
|
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|
(a)(2)
|
Not
Applicable |
|||
|
(b)
|
5.08
|
|||
|
(c)
|
10.4
|
|||
|
§
317 |
(a)(1)
|
5.03
|
||
|
(a)(2)
|
5.04
|
|||
|
(b)
|
10.03
|
|||
|
§
318 |
(a)
|
1.07
|
||
NOTE: This
reconciliation and tie shall not, for any purpose, be deemed to be a part of
the Indenture.
TABLE
OF CONTENTS
|
Page
|
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| ARTICLE I |
1
|
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|
Section
1.01 |
Definitions
|
1
|
|
|
Section
1.02 |
Compliance
Certificates and Opinions |
8
|
|
|
Section
1.03 |
Form of
Documents Delivered to Trustee |
9
|
|
|
Section
1.04 |
Acts of
Holders; Record Dates |
10
|
|
|
Section
1.05 |
Notices,
Etc., to Trustee and Company |
11
|
|
|
Section
1.06 |
Notice
to Holders; Waiver |
12
|
|
|
Section
1.07 |
Conflict
with Trust Indenture Act |
12
|
|
|
Section
1.08 |
Effect
of Headings and Table of Contents |
13
|
|
|
Section
1.09 |
Successors
and Assigns |
13
|
|
|
Section
1.10 |
Separability
Clause |
13
|
|
|
Section
1.11 |
Benefits
of Indenture |
13
|
|
|
Section
1.12 |
Governing
Law |
13
|
|
|
Section
1.13 |
Legal
Holidays |
13
|
|
|
Section
1.14 |
Consent
to Service; Jurisdiction. |
14
|
|
| ARTICLE II |
SECURITY
FORMS |
14
|
|
|
Section
2.01 |
Forms
Generally |
14
|
|
|
Section
2.02 |
Form of
Face of Security |
15
|
|
|
Section
2.03 |
Form of
Reverse of Security |
17
|
|
|
Section
2.04 |
Form of
Legend for Global Securities |
22
|
|
|
Section
2.05 |
Form of
Trustee’s Certificate of Authentication |
23
|
|
| ARTICLE III |
THE
SECURITIES |
23
|
|
|
Section
3.01 |
Amount
Unlimited; Issuable in Series |
23
|
|
|
Section
3.02 |
Denominations
|
26
|
|
|
Section
3.03 |
Execution,
Authentication, Delivery and Dating |
26
|
|
|
Section
3.04 |
Temporary
Securities |
27
|
|
|
Section
3.05 |
Registration,
Registration of Transfer and Exchange |
28
|
|
|
Section
3.06 |
Mutilated,
Destroyed, Lost and Stolen Securities |
29
|
|
|
Section
3.07 |
Payment
of Interest; Interest Rights Preserved |
30
|
|
i
TABLE
OF CONTENTS
(continued)
|
Page
|
|||
|
Section
3.08 |
Persons
Deemed Owners |
31
|
|
|
Section
3.09 |
Cancellation
|
32
|
|
|
Section
3.10 |
Computation
of Interest |
32
|
|
|
Section
3.11 |
CUSIP
Numbers |
32
|
|
| ARTICLE IV |
SATISFACTION
AND DISCHARGE |
32
|
|
|
Section
4.01 |
Satisfaction
and Discharge of Indenture |
32
|
|
|
Section
4.02 |
Application
of Trust Money |
33
|
|
| ARTICLE V |
REMEDIES
|
34
|
|
|
Section
5.01 |
Events
of Default |
34
|
|
|
Section
5.02 |
Acceleration
of Maturity; Rescission and Annulment |
36
|
|
|
Section
5.03 |
Collection
of Indebtedness and Suits for Enforcement by Trustee |
37
|
|
|
Section
5.04 |
Trustee
May File Proofs of Claim |
37
|
|
|
Section
5.05 |
Trustee
May Enforce Claims Without Possession of Securities |
38
|
|
|
Section
5.06 |
Application
of Money Collected |
38
|
|
|
Section
5.07 |
Limitation
on Suits |
38
|
|
|
Section
5.08 |
Unconditional
Right of Holders to Receive Principal, Premium and Interest and to
Convert |
39
|
|
|
Section
5.09 |
Restoration
of Rights and Remedies |
39
|
|
|
Section
5.10 |
Rights
and Remedies Cumulative |
39
|
|
|
Section
5.11 |
Delay or
Omission Not Waiver |
40
|
|
|
Section
5.12 |
Control
by Holders |
40
|
|
|
Section
5.13 |
Waiver
of Past Defaults |
40
|
|
|
Section
5.14 |
Undertaking
for Costs |
41
|
|
|
Section
5.15 |
Waiver
of Usury, Stay or Extension Laws |
41
|
|
| ARTICLE VI |
THE
TRUSTEE |
41
|
|
|
Section
6.01 |
Duties
of Trustee |
41
|
|
|
Section
6.02 |
Rights
of Trustee |
42
|
|
|
Section
6.03 |
Individual
Rights of Trustee |
43
|
|
|
Section
6.04 |
Trustee’s
Disclaimer |
43
|
|
|
Section
6.05 |
Notice
of Default |
44
|
|
ii
TABLE
OF CONTENTS
(continued)
|
Page
|
|||
|
Section
6.06 |
Reports
by Trustee to Holders |
44
|
|
|
Section
6.07 |
Compensation
and Indemnity |
44
|
|
|
Section
6.08 |
Replacement
of Trustee |
45
|
|
|
Section
6.09 |
Successor
Trustee by Xxxxxx, Etc |
46
|
|
|
Section
6.10 |
Eligibility;
Disqualification |
46
|
|
|
Section
6.11 |
Preferential
Collection of Claims against Company |
46
|
|
| ARTICLE VII |
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY |
46
|
|
|
Section
7.01 |
Company
to Furnish Trustee Names and Addresses of Holders |
46
|
|
|
Section
7.02 |
Preservation
of Information; Communications to Holders |
47
|
|
|
Section
7.03 |
Reports
by Trustee |
47
|
|
|
Section
7.04 |
Reports
by Company |
47
|
|
| ARTICLE VIII |
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE |
48
|
|
|
Section
8.01 |
When
Company May Merge, Etc |
48
|
|
|
Section
8.02 |
Successor
Corporation Substituted |
48
|
|
| ARTICLE IX |
SUPPLEMENTAL
INDENTURES |
49
|
|
|
Section
9.01 |
Supplemental
Indentures Without Consent of Holders |
49
|
|
|
Section
9.02 |
Supplemental
Indentures with Consent of Holders |
50
|
|
|
Section
9.03 |
Execution
of Supplemental Indentures |
51
|
|
|
Section
9.04 |
Effect
of Supplemental Indentures |
51
|
|
|
Section
9.05 |
Conformity
with Trust Indenture Act |
52
|
|
|
Section
9.06 |
Reference
in Securities to Supplemental Indentures |
52
|
|
| ARTICLE X |
COVENANTS
|
52
|
|
|
Section
10.01 |
Payment
of Securities |
52
|
|
|
Section
10.02 |
Maintenance
of Office or Agency |
52
|
|
|
Section
10.03 |
Money
for Securities Payments to Be Held in Trust |
53
|
|
|
Section
10.04 |
Corporate
Existence |
54
|
|
|
Section
10.05 |
Payment
of Taxes and Other Claims |
54
|
|
|
Section
10.06 |
Compliance
Certificate; Notice of Default |
54
|
|
|
Section
10.07 |
Waiver
of Stay, Extension or Usury Laws |
55
|
|
iii
TABLE
OF CONTENTS
(continued)
|
Page
|
|||
|
Limitation
on Liens |
55
|
||
|
Section
10.09 |
Limitation
on Transactions with Affiliates |
55
|
|
| ARTICLE XI |
REDEMPTION
OF SECURITIES |
56
|
|
|
Section
11.01 |
Applicability
of Article |
56
|
|
|
Section
11.02 |
Election
to Redeem; Notice to Trustee |
56
|
|
|
Section
11.03 |
Selection
by Trustee of Securities to Be Redeemed |
56
|
|
|
Section
11.04 |
Notice
of Redemption |
57
|
|
|
Section
11.05 |
Deposit
of Redemption Price |
58
|
|
|
Section
11.06 |
Securities
Payable on Redemption Date |
58
|
|
|
Section
11.07 |
Securities
Redeemed in Part |
58
|
|
| ARTICLE XII |
SINKING
FUNDS |
59
|
|
|
Section
12.01 |
Applicability
of Article |
59
|
|
|
Section
12.02 |
Satisfaction
of Sinking Fund Payments with Securities |
59
|
|
|
Section
12.03 |
Redemption
of Securities for Sinking Fund |
60
|
|
| ARTICLE XIII |
DEFEASANCE
AND COVENANT DEFEASANCE |
60
|
|
|
Section
13.01 |
Company’s
Option to Effect Defeasance or Covenant Defeasance |
60
|
|
|
Section
13.02 |
Defeasance
and Discharge |
61
|
|
|
Section
13.03 |
Covenant
Defeasance |
61
|
|
|
Section
13.04 |
Conditions
to Defeasance or Covenant Defeasance |
61
|
|
|
Section
13.05 |
Deposited
Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions |
63 |
|
|
Section
13.06 |
Reinstatement
|
64
|
|
| ARTICLE XIV |
CONVERSION
OF SECURITIES |
64
|
|
|
Section
14.01 |
Applicability;
Conversion Privilege and Conversion Price |
64
|
|
|
Section
14.02 |
Exercise
of Conversion Privilege |
65
|
|
|
Section
14.03 |
Fractions
of Shares |
66
|
|
|
Section
14.04 |
Adjustment
of Conversion Price |
66
|
|
|
Section
14.05 |
Notice
of Adjustments of Conversion Price |
68
|
|
|
Section
14.06 |
Notice
of Certain Corporate Action |
69
|
|
|
Section
14.07 |
Company
to Reserve Common Shares |
70
|
|
iv
TABLE
OF CONTENTS
(continued)
|
Page
|
|||
|
Section
14.08 |
Taxes on
Conversions |
70
|
|
|
Section
14.09 |
Covenant
as to Common Shares |
70
|
|
|
Section
14.10 |
Cancellation
of Converted Securities |
70
|
|
|
Provisions
in Case of Consolidation, Merger or Sale of Assets |
70
|
||
|
Section
14.12 |
Responsibility
of Trustee |
71
|
v
INDENTURE,
dated as of December 27, 2006, between Primus Guaranty, Ltd., a company duly
organized and existing under the laws of Bermuda (herein called the
“Company”),
having its principal office at Clarendon House, 0 Xxxxxx Xxxxxx,
Xxxxxxxx XX00, Xxxxxxx, and Deutsche Bank Trust Company Americas, a New
York banking corporation, as Trustee (herein called the “Trustee”).
RECITALS
OF THE COMPANY
The
Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its unsecured debentures, notes
or other evidences of indebtedness (herein called the “Securities”),
to be issued in one or more series as in this Indenture provided.
All
things necessary to make this Indenture a valid and legally binding agreement
of the Company, in accordance with its terms, have been done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually agreed, for the equal and proportionate benefit
of all Holders of the Securities or of series thereof, as follows:
ARTICLE
I
DEFINITIONS
AND OTHER PROVISIONS
OF
GENERAL APPLICATION
Section
1.01 Definitions.
For all
purposes of this Indenture, except as otherwise expressly provided or unless
the context otherwise requires:
(1)
the
terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;
(2)
all
other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(3)
all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles, and, except
as otherwise herein expressly provided, the term GAAP with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such
computation;
(4)
the
words “Article” and “Section” refer to an Article and
Section, respectively, of this Indenture;
1
(5)
the
words “herein”, “hereof” and “hereunder” and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(6)
certain
terms used principally in Articles VI, X, XIII and XIV, are defined in those
Articles.
“Act”,
when used with respect to any Holder, has the meaning specified in Section
1.04.
“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, “control”
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to
the foregoing.
“Bankruptcy
Law” means Title 11, U.S. Code or any similar Federal, state or foreign
law for the relief of debtors.
“Board
of Directors” means either the board of directors of the Company or any
duly authorized committee of that 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,
and delivered to the Trustee.
“Business
Day”, when used with respect to any Place of Payment, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment are authorized or obligated by law or
executive order to close.
“Capital
Lease Obligation” means, at any time any determination thereof is made,
the amount of the liability in respect of a capital lease that would at such
time be so required to be capitalized on the balance sheet in accordance with
generally accepted accounting principles.
“Capital
Stock”, as applied to the share capital of any corporation, means the
share capital of every class whether now or hereafter authorized, regardless of
whether such share capital shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
“Commission”
means the Securities and Exchange Commission, from time to time constituted,
created under the Exchange Act or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
2
“Common
Shares” includes any shares of any class of the Company which have no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which are not subject to redemption by the Company. However, subject to the
provisions of Section 3.01(16) and (17) and Section 14.11, shares issuable on
conversion of Securities shall include only shares of the class designated as
Common Shares of the Company at the date of this instrument or shares of any
class or classes resulting from any reclassification or reclassifications
thereof and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution
or winding-up of the Company and which are not subject to redemption by the
Company; provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares
of all such classes resulting from all such reclassifications.
“Company”
means the Person named as the “Company” in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Company”
shall mean such successor Person.
“Company
Request” or “Company Order” means a written request or order
signed in the name of the Company by its Chairman of the Board, a Vice Chairman
of the Board, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
“Consolidated
Net Worth” means, with respect to any Person as of any date, the sum of
(i) the consolidated equity of the common shareholders of such Person and its
Subsidiaries as of such date plus (ii) the respective amounts reported on such
Person’s balance sheet as of such date with respect to any series of
preferred shares (other than Disqualified Stock) that by its terms is not
entitled to the payment of dividends unless such dividends may be declared and
paid only out of net earnings in respect of the year of such declaration and
payment, but only to the extent of any cash received by such Person upon
issuance of such preferred shares.
“Corporate
Trust Office” means the principal office of the Trustee in New York, New
York at which at any particular time its corporate trust business shall be
administered, which office as of the date hereof is located at 00 Xxxx
Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
“Corporation”
means a corporation, association, company, joint-stock company or business
trust.
“Covenant
Defeasance” has the meaning specified in Section 13.03.
“Defaulted
Interest” has the meaning specified in Section 3.07.
“Defeasance”
has the meaning specified in Section 13.02.
“Defeasible
Series” has the meaning specified in Section 13.01.
3
“Depositary”
means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under
the Exchange Act that is designated to act as Depositary for such Securities as
contemplated by Section 3.01.
“Disqualified
Stock” means any Capital Stock which by its terms (or by the terms of any
security into which it is convertible of for which it is exchangeable), or upon
the happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the Holder
thereof, in whole or in part, on or prior to the final date of maturity of the
Securities.
“Event
of Default” has the meaning specified in Section 5.01.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to
time, and any statute successor thereto.
“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Standards
Board or in such other statements by such other entity as have been approved by
a significant segment of the accounting profession.
“Global
Security” means a Security that evidences all or part of the Securities of
any series and is authenticated and delivered to, and registered in the name
of, the Depositary for such Securities or a nominee thereof.
“Guaranty”
means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any
manner (including, without limitation, letters of credit and reimbursement
agreements in respect thereof), or all or any part of any Indebtedness.
“Hedging
Obligations” means, with respect to any Person, the Obligations of such
Person under interest rate swap agreements, interest rate cap agreements, and
interest rate collar agreements, and other agreements or arrangements designed
to protect such Person against fluctuations in interest rates.
“Holder”
means a Person in whose name a Security is registered in the Security
Register.
“Indebtedness”
means, with respect to any Person, any indebtedness of such Person, whether or
not contingent, in respect of borrowed money or evidenced by bonds, notes,
debentures of similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or representing Capital Lease Obligations or the
balance deferred and unpaid of the purchase price of any property or
representing any Hedging Obligations, except any such balance that constitutes
an accrued expense or trade payable, if and to the extent any of the foregoing
indebtedness (other than letters of credit and Hedging Obligations) would
appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, and also includes, to the extent not otherwise included,
the Guaranty of any indebtedness of such Person or any other
Person.
4
“Indenture”
means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument, and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively. The term
“Indenture” shall also include the terms of particular series of
Securities established as contemplated by Section 3.01.
“Interest”,
when used with respect to an Original Issue Discount Security which by its
terms bears interest only after Maturity, means interest payable after
Maturity.
“Interest
Payment Date”, when used with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
“Lien”
means any mortgage, lien, pledge, charge, security interest, or other
encumbrance of any kind, whether or not filed, recorded or otherwise perfected
under applicable law.
“Material
Subsidiary” means any Subsidiary of the Company or any of its Subsidiaries
if the Company’s or any of its Subsidiaries’ investments in such
Subsidiary at the date of determination thereof represent 5% or more of the
Company’s Consolidated Net Worth as of such date.
“Maturity”,
when used with respect to any Security, means the date on which the principal
of such Security or an installment of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
“Notice
of Default” means a written notice of the kind specified in Section
5.01(4).
“Obligations”
means any principal, premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing an Indebtedness.
“Officers’
Certificate” means a certificate signed by the Chairman of the Board, a
Vice Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee. One of the officers signing an
Officers’ Certificate given pursuant to Section 10.06 shall be the
principal executive, financial or accounting officer of the
Company.
“Opinion
of Counsel” means a written opinion of counsel, who may be counsel for the
Company.
“Original
Issue Discount Security” means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.02.
5
“Outstanding”,
when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture,
except:
(1)
Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(2)
Securities for whose payment or redemption money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities;
provided that,
if such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(3)
Securities as to which Defeasance has been effected pursuant to Section 13.02;
and
(4)
Securities which have been paid pursuant to Section 3.06 or in exchange for or
in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided,
however, that
in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (A) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon acceleration of the Maturity thereof to such
date pursuant to Section 5.02, (B) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 3.01 on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in Clause (A) above) of such Security, and (C)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee’s right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
“Paying
Agent” means any Person authorized by the Company to pay the principal of
or any premium or interest on any Securities on behalf of the
Company.
6
“Permitted
Liens” means (a) Liens in favor of the Company; (b) Liens on any shares of
Voting Stock of any corporation existing at the time such corporation becomes a
Material Subsidiary of the Company (and any extensions, renewals or
replacements thereof); (c) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds or other Obligations of
a like nature incurred in the ordinary course of business; (d) mechanics’,
materialmen’s, workmen’s, repairmen’s, warehousemen’s and
carrier’s liens arising in the ordinary course of business; (e) easements,
rights of way and other similar restrictions that do not materially adversely
affect the use and enjoyment of the property subject thereto or affected
thereby and (f) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded;
provided, that
any reserve or appropriate provision as shall be required in conformity with
generally accepted accounting principles shall have been made
therefor.
“Person”
means any individual, corporation, partnership, joint venture, limited
liability company, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“Place
of Payment”, when used with respect to the Securities of any series, means
the place or places where the principal of and any premium and interest on the
Securities of that series are payable as specified as contemplated by Section
3.01.
“Predecessor
Security” of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
“Redemption
Date”, when used with respect to any Security to be redeemed, means the
date fixed for such redemption by or pursuant to this Indenture.
“Redemption
Price”, when used with respect to any Security to be redeemed, means the
price at which it is to be redeemed pursuant to this Indenture.
“Regular
Record Date” for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified for that purpose as
contemplated by Section 3.01.
“Responsible
Officer”, when used with respect to the Trustee, means any managing
director, director, associate, vice president, any assistant treasurer, any
trust officer or assistant trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
“Securities”
has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this
Indenture.
7
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission promulgated
thereunder.
“Security
Register” and “Security Registrar” have the respective meanings
specified in Section 3.05.
“Special
Record Date” for the payment of any Defaulted Interest means a date fixed
by the Trustee pursuant to Section 3.07.
“Stated
Maturity”, when used with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
“Subsidiary”
means a corporation more than 50% of the outstanding Voting Stock of which is
owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.
“Trust
Indenture Act” means the Trust Indenture Act of 1939 as in force at the
date as of which this instrument was executed; provided,
however, that
in the event the Trust Indenture Act of 1939 is amended after such date,
“Trust Indenture Act” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter “Trustee”
shall mean or include each Person who is then a Trustee hereunder, and if at
any time there is more than one such Person, “Trustee” as used with
respect to the Securities of any series shall mean each Trustee with respect to
Securities of that series.
“U.S.
Government Obligations” has the meaning specified in Section
13.04.
“Vice
President”, when used with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title “vice president”.
“Voting
Stock” means any class or classes of Capital Stock pursuant to which the
holders thereof have the general voting power under ordinary circumstances to
elect at least a majority of the board of directors, managers or trustees of
any Person (irrespective of whether or not at the time shares of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
Section
1.02 Compliance
Certificates and Opinions.
Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act.
Each such certificate or opinion shall be given in the form of an
Officers’ Certificate, if to be given by an officer of the Company,
8
or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (including certificates provided for in Section
10.06) shall include
(1) a
statement that each individual signing such certificate or opinion has read
such covenant or condition and the definitions herein relating
thereto;
(2)
a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(3) a
statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4)
a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
Section
1.03 Form
of Documents Delivered to Trustee.
In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous. Any
such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company or any subsidiary of the Company stating
that the information with respect to such factual matters is in the possession
of the Company or any subsidiary of the Company, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where
any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.
9
Section
1.04 Acts
of Holders; Record Dates.
Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act”
of the Holders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact
and date of the execution by any Person of any such instrument or writing may
be proved by the affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to take acknowledgments
of deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
The
ownership of Securities shall be proved by the Security Register.
Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The
Company may, in the circumstances permitted by the Trust Indenture Act, set any
day as the record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given or taken by Holders of
Securities of such series. With regard to any record date set pursuant to this
paragraph, the Holders of Outstanding Securities of the relevant series on such
record date (or their duly appointed agents), and only such Persons, shall be
entitled to give or take the relevant action, whether or not such Holders
remain Holders after such record date. With regard to any action that may be
given or taken hereunder only by Holders of a requisite principal amount of
Outstanding Securities of any series (or their duly appointed agents) and for
which a record date is set pursuant to this paragraph, the Company may, at its
option, set an expiration date after which no such action purported to be given
or taken by any Holder shall be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set pursuant to this
paragraph, the Company may, on one or more occasions at its option, extend such
date to any later date. Nothing in this paragraph
10
shall
prevent any Holder (or any duly appointed agent thereof) from giving or taking,
after any such expiration date, any action identical to, or, at any time,
contrary to or different from, the action or purported action to which such
expiration date relates, in which event the Company may set a record date in
respect thereof pursuant to this paragraph. Nothing in this paragraph shall be
construed to render ineffective any action taken at any time by the Holders (or
their duly appointed agents) of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is so taken.
Notwithstanding the foregoing or the Trust Indenture Act, the Company shall not
set a record date for, and the provisions of this paragraph shall not apply
with respect to, any notice, declaration or direction referred to in the next
paragraph.
The
Trustee may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.02, if an Event of Default with respect to Securities
of such series has occurred and is continuing and the Trustee shall not have
given such a declaration to the Company, (iii) any request to institute
proceedings referred to in Section 5.07(2) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. Promptly
after any record date is set pursuant to this paragraph, the Trustee shall
notify the Company and the Holders of Outstanding Series of such series of any
such record date so fixed and the proposed action. The Holders of Outstanding
Securities of such series on such record date (or their duly appointed agents),
and only such Persons, shall be entitled to join in such notice, declaration or
direction, whether or not such Holders remain Holders after such record date;
provided that,
unless such notice, declaration or direction shall have become effective by
virtue of Holders of the requisite principal amount of Outstanding Securities
of such series on such record date (or their duly appointed agents) having
joined therein on or prior to the 90th day after such record date, such notice,
declaration or direction shall automatically and without any action by any
Person be cancelled and of no further effect. Nothing in this paragraph shall
be construed to prevent a Holder (or a duly appointed agent thereof) from
giving, before or after the expiration of such 90-day period, a notice,
declaration or direction contrary to or different from, or, after the
expiration of such period, identical to, the notice, declaration or direction
to which such record date relates, in which event a new record date in respect
thereof shall be set pursuant to this paragraph. Nothing in this paragraph
shall be construed to render ineffective any notice, declaration or direction
of the type referred to in this paragraph given at any time to the Trustee and
the Company by Holders (or their duly appointed agents) of the requisite
principal amount of Outstanding Securities of the relevant series on the date
such notice, declaration or direction is so given.
Without
limiting the foregoing, a Holder entitled hereunder to give or take any action
hereunder with regard to any particular Security may do so with regard to all
or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any different part of such principal amount.
Section
1.05 Notices,
Etc., to Trustee and Company.
Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
11
(1) the
Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing (which may be via
facsimile) to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, or
(2) the
Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
Section
1.06 Notice
to Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder affected by
such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
In case
by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section
1.07 Conflict
with Trust Indenture Act.
If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the Trust Indenture Act provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Wherever this Indenture refers to a provision of the Trust Indenture Act, such
provision is incorporated by reference in and made a part of this
Indenture.
The
following Trust Indenture Act terms used in this Indenture have the following
meanings:
“commission”
means the United States Securities and Exchange Commission;
“indenture
securities” means the Securities;
12
“indenture
security holder” means a Holder;
“indenture
to be qualified” means this Indenture;
“indenture
trustee” or “institutional trustee” means the Trustee;
and
“obligor
on the indenture securities” means the Company and any other obligor on
the Securities.
All
other Trust Indenture Act terms used in this Indenture that are defined by the
Trust Indenture Act, defined by the Trust Indenture Act referenced to another
statute or defined by any Commission Rule and not otherwise defined herein have
the meanings defined to them thereby.
Section
1.08 Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section
1.09 Successors
and Assigns.
All
covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section
1.10 Separability
Clause.
In case
any provision in this Indenture or in the Securities shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
1.11 Benefits
of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section
1.12 Governing
Law.
This
Indenture and the Securities shall be governed by and construed in accordance
with the law of the State of New York, but without regard to principles of
conflicts of laws.
Section
1.13 Legal
Holidays.
In any
case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security or the last date on which a Holder has the right to convert his
Securities shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of the Securities of any series which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or
13
principal
(and premium, if any) or conversion of the Securities need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, or on such
last day for conversion; provided that no interest shall accrue for the
intervening period.
Section
1.14 Consent
to Service; Jurisdiction.
(1) The
Company and the Trustee agree that any legal suit, action or proceeding arising
out of or relating to this Indenture, and the Company agrees that any legal
suit, action or proceeding arising out of or relating to the Securities, may be
instituted in any federal or state court in the Borough of Manhattan, the City
of New York. Each of the Company and the Trustee waives any objection which it
may now or hereafter have to the laying of the venue of any such legal suit,
action or proceeding, waives any immunity from jurisdiction or to service of
process in respect of any such suit, action or proceeding, and irrevocably
submits to the exclusive jurisdiction of any such court in any such suit,
action or proceeding.
(2)
The
Company hereby designates and appoints Primus Asset Management, Inc., located
as of the date hereof at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its
authorized agent upon which process may be served in any legal suit, action or
proceeding arising out of or relating to this Indenture or the Securities which
may be instituted in any federal or state court in the Borough of Manhattan,
the City of New York, and agrees that service of process upon such agent, and
written notice of said service to the Company by the Person serving the same,
shall be deemed in every respect effective service of process upon the Company
in any such suit, action or proceeding and further designates its domicile, the
domicile of New York, New York specified above and any domicile it may have in
the future as its domicile to receive any notice hereunder (including service
of process). Service of process, to be effective upon the Trustee, must be
served at the Trustee’s Corporate Trust Office. If for any reason Primus
Asset Management, Inc., New York, New York (or any successor agent for this
purpose) shall cease to act as agent for service of process as provided above,
the Company will promptly appoint a successor agent for this purpose reasonably
acceptable to the Trustee. The Company agrees to take any and all actions
necessary to maintain such designation and appointment of such agent in full
force and effect.
ARTICLE
II
SECURITY
FORMS
Section
2.01 Forms
Generally.
The
Securities of each series shall be in substantially the form set forth in this
Article, or in such other form as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or
14
endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
If the form of Securities of any series is established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.03 for the authentication and delivery of such
Securities.
The
definitive Securities shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
Section
2.02 Form
of Face of Security.
[Insert
any legend required by the Internal Revenue Code and the regulations
thereunder.]
PRIMUS
GUARANTY, LTD.
___________________________________________________
| No. ____________________ |
$_________ |
Primus
Guaranty, Ltd., a company duly organized and existing under the laws of Bermuda
(herein called the “Company”,
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
_______________________________________, or registered assigns, the principal
sum of ___________________ ___________________ Dollars on
____________________________ ___________________________ [if
the Security is to bear interest prior to Maturity, insert—,
and to pay interest thereon from _______________________
or from the most recent Interest Payment Date to which interest has been paid
or duly provided for, semi-annually on ____________ and ____________ in each
year, commencing __________ at the rate of ____% per annum, until the principal
hereof is paid or made available for payment [if
applicable, insert—,
and at the rate of ____% per annum on any overdue principal and premium and on
any overdue installment of interest]. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the _______ or _______
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and
15
upon
such notice as may be required by such exchange, all as more fully provided in
said Indenture].
[If
the Security is not to bear interest prior to Maturity, insert—
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ____% per annum, which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of _______% per annum, which shall
accrue from the date of such demand for payment to the date payment of such
interest has been made or duly provided for, and such interest shall also be
payable on demand.]
Payment
of the principal of (and premium, if any) and [if
applicable, insert—
any such] interest on this Security will be made at the office or agency of the
Company maintained for that purpose in _____________, in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts [if
applicable, insert—;
provided,
however, that
at the option of the Company payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register].
Reference
is hereby made to the further provisions of this Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
16
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated:
|
PRIMUS
GUARANTY, LTD. |
||
| |
|
|
| By: | ||
|
Name:
Title:
|
||
Attest:
______________________
Section
2.03 Form
of Reverse of Security.
This
Security is one of a duly authorized issue of securities of the Company (herein
called the “Securities”),
issued and to be issued in one or more series under an Indenture, dated as of
__________ __, 20__ (herein called the “Indenture”),
between the Company and _________________, as Trustee (herein called the
“Trustee”,
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if
applicable, insert—,
limited in aggregate principal amount to $___________].
[If
applicable, insert — Subject to and upon compliance with the provisions of
the Indenture, the Holder of this Security is entitled, at his option, at any
time on or before the close of business on __________, or in case this Security
or a portion hereof is called for redemption, then in respect of this Security
or such portion hereof until and including, but (unless the Company defaults in
making the payment due upon redemption) not after, the close of business on the
10th calendar day before the Redemption Date, to convert this Security (or any
portion of the principal amount hereof which is $1,000 or an integral multiple
thereof), at the principal amount hereof, or of such portion, into fully paid
and non-assessable Common Shares (calculated as to each conversion to the
nearest 1/100 of a share) of the Company at a conversion price per Common Share
equal to $_____ per each Common Share (or at the current adjusted conversion
price if an adjustment has been made as provided in the Indenture) by surrender
of this Security, duly endorsed or assigned to the Company or in blank, to the
Company at its office or agency in _________, accompanied by written notice to
the Company that the Holder hereof elects to convert this Security, or if less
than the entire principal amount hereof is to be converted, the portion hereof
to be converted, and, in case such surrender shall be made during
17
the
period from the close of business on any Regular Record Date next preceding any
Interest Payment Date to the opening of business on such Interest Payment Date
(unless this Security or the portion thereof being converted has been called
for redemption on a Redemption Date within such period), also accompanied by
payment in funds acceptable to the Company of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of this Security
then being converted. Subject to the aforesaid requirement for payment and, in
the case of a conversion after the Regular Record Date next preceding any
Interest Payment Date and on or before such Interest Payment Date, to the right
of the Holder of this Security (or any Predecessor Security) of record at such
Regular Record Date to receive an installment of interest (with certain
exceptions provided in the Indenture), no payment or adjustment is to be made
on conversion for interest accrued hereon or for dividends on the Common Shares
issued on conversion. No fractions of shares or scrip representing fractions of
shares will be issued on conversion, but instead of any fractional interest the
Company shall pay a cash adjustment as provided in the Indenture. The
conversion price is subject to adjustment as provided in the Indenture. In
addition, the Indenture provides that in case of certain consolidations or
mergers to which the Company is a party or the transfer of substantially all of
the assets of the Company, the Indenture shall be amended, without the consent
of any Holders of Securities, so that this Security, if then outstanding, will
be convertible thereafter, during the period this Security shall be convertible
as specified above, only into the kind and amount of securities, cash and other
property receivable upon the consolidation, merger or transfer by a holder of
the number of Common Shares into which this Security might have been converted
immediately prior to such consolidation, merger or transfer (assuming such
holder of the Common Shares failed to exercise any rights of election and
received per share the kind and amount received per share by a plurality of
non-electing shares).]
[If
applicable, insert—
The Securities of this series are subject to redemption upon not less than 30
days’ notice by mail, [if
applicable, insert —
(1) on ___________ in any year commencing with the year ______ and ending with
the year ______ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time
[if
applicable, insert on or
after ___________, 20__], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [if
applicable, insert—
on or before _______________, __%, and if redeemed] during the 12-month period
beginning _____________ of the years indicated,
|
Year
|
Redemption
Price |
Year
|
Redemption
Price |
|||
and
thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if
applicable, insert—
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest installments whose
18
Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[If
applicable, insert—
The Securities of this series are subject to redemption upon not less than 30
days’ notice by mail, (1) on ____________ in any year commencing with the
year ____ and ending with the year ____ through operation of the sinking fund
for this series at the Redemption Prices for redemption through operation of
the sinking fund (expressed as percentages of the principal amount) set forth
in the table below, and (2) at any time [if
applicable, insert —
on or after ____________], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning _____________ of the years indicated,
|
Year
|
Redemption
Price
For
Redemption Through
Operation
of the Sinking Fund |
Redemption
Price For
Redemption
Otherwise
Than Through
Operation
of the Sinking Fund |
||
and
thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If
applicable, insert —
Notwithstanding the foregoing, the Company may not, prior to ____________,
redeem any Securities of this series as contemplated by [if
applicable, insert—
Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than _____% per
annum.]
[If
applicable, insert—
The sinking fund for this series provides for the redemption on ____________ in
each year beginning with the year _______ and ending with the year _____ of
[if
applicable, insert—
not less than $____________ (“mandatory sinking fund”) and not more
than] $________ aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through (if
applicable, insert—
mandatory] sinking fund payments [if
applicable, insert -
and Securities surrendered for conversion] may be credited against subsequent
[if
applicable, insert—
mandatory] sinking fund payments otherwise required to be made [if
applicable, insert—
in the inverse order in which they become due.]
19
[If
the Security is subject to redemption of any kind, insert—
In the event of redemption or conversion of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed or
unconverted portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.]
[If
applicable, insert—
The Indenture contains provisions for defeasance at any time of [(1) the entire
indebtedness of this Security or (2)] certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.]
[If
the Security is not an Original Issue Discount Security, insert—
If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If
the Security is an Original Issue Discount Security, insert—
If an Event of Default with respect to Securities of this series shall occur
and be continuing, an amount of principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to insert
formula for determining the amount. Upon
payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal and overdue interest all of the
Company’s obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall
terminate.]
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of
the Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
As
provided in and subject to the provisions of the Indenture, the Holder of this
Security shall not have the right to institute any proceeding with respect to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities
of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
20
such
request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed or to convert this Security as provided in the
Indenture.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registerable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in any place where the principal of and any premium and interest
on this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The
Securities of this series are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, Securities
of this series are exchangeable for a like aggregate principal amount of
Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company or the Security Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to
due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
All
terms used in this Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
[If
applicable, insert —
[FORM OF
CONVERSION NOTICE]
To: PRIMUS
GUARANTY, LTD.
The
undersigned owner of this Security hereby irrevocably exercises the option to
convert this Security, or portion hereof (which is $1,000 or an integral
multiple thereof) below
21
designated,
into Common Shares of Primus Guaranty, Ltd., in accordance with the terms of
the Indenture referred to in this Security, and directs that the shares
issuable and deliverable upon the conversion, together with any check in
payment for fractional shares and any Securities, representing any unconverted
principal amount hereof, be issued and delivered to the registered holder
hereof unless a different name has been indicated below. If shares are to be
issued in the name of a person other than the undersigned, the undersigned will
pay all transfer taxes payable with respect thereto. Any amount required to be
paid by the undersigned on account of interest accompanies this
Security.
|
Dated:
|
|
|
Fill in
for registration of Common Shares |
|
|
and
Securities if to be issued otherwise |
|
|
than to
the registered holder. |
|
|
|
Principal
Amount to be |
|
|
converted
(in an integral |
|
|
multiple
of $1,000, if |
|
|
less
than all): |
|
_______________________________
|
$
|
|
Name
|
|
|
_______________________________
|
|
|
Address
|
|
|
_______________________________
|
_____________________________________
|
|
(Please
print name and |
Signature
|
|
address,
including zip code |
|
|
number)
|
|
|
|
|
|
|
|
|
SOCIAL
SECURITY OR OTHER |
|
|
TAXPAYER
IDENTIFYING |
[SIGNATURE
GUARANTEED — |
|
NUMBER
|
required
only if |
|
|
Common
Shares and Securities are to be |
|
|
issued
and delivered to other than registered |
|
|
holder]
|
|
|
Section
2.04 Form
of Legend for Global Securities.
Unless
otherwise specified as contemplated by Section 3.01 for the Securities
evidenced thereby, every Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
This
Security is a Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee thereof.
This Security may not be transferred to, or registered or exchanged for
Securities registered in the name of, any
22
Person
other than the Depositary or a nominee thereof and no such transfer may be
registered, except in the limited circumstances described in the Indenture.
Every Security authenticated and delivered upon registration of transfer of, or
in exchange for or in lieu of, this Security shall be a Global Security subject
to the foregoing, except in such limited circumstances.
Section
2.05 Form
of Trustee’s Certificate of Authentication.
The
Trustee’s certificates of authentication shall be in substantially the
following form:
This is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
|
DEUTSCHE
BANK TRUST COMPANY
AMERICAS,
as Trustee |
||
| |
|
|
| By: | ||
| |
Authorized
Signatory |
|
| Dated: | ||
|
|
||
ARTICLE
III
THE
SECURITIES
Section
3.01 Amount
Unlimited; Issuable in Series.
The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The
Securities may be issued in one or more series. There shall be established in
or pursuant to a Board Resolution and, subject to Section 3.03, set forth, or
determined in the manner provided, in an Officers’ Certificate, or
established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series,
(1) the
title of the Securities of the series, including CUSIP Numbers (which shall
distinguish the Securities of the series from Securities of any other
series);
(2)
any limit
upon the aggregate principal amount of the Securities of the series which may
be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 3.04,
3.05, 3.06, 9.06 or 11.07 and except for any Securities which, pursuant to
Section 3.03, are deemed never to have been authenticated and delivered
hereunder);
23
(3)
the
Person to whom any interest on a Security of the series shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest;
(4)
the date
or dates on which the principal of the Securities of the series is
payable;
(5)
the rate
or rates at which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue, the Interest Payment Dates
on which any such interest shall be payable and the Regular Record Date for any
interest payable on any Interest Payment Date;
(6)
the
place or places where the principal of and any premium and interest on
Securities of the series shall be payable;
(7)
the
period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or in
part, at the option of the Company;
(8) the
obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of
a Holder thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other
than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of the series shall be issuable;
(10) the
currency, currencies or currency units in which payment of the principal of and
any premium and interest on any Securities of the series shall be payable if
other than the currency of the United States of America and the manner of
determining the equivalent thereof in the currency of the United States of
America for purposes of the definition of “Outstanding” in Section
1.01;
(11) if the
amount of payments of principal of or any premium or interest on any Securities
of the series may be determined with reference to an index, the manner in which
such amounts shall be determined;
(12) if the
principal of or any premium or interest on any Securities of the series is to
be payable, at the election of the Company or a Holder thereof, in one or more
currencies or currency units other than that or those in which the Securities
are stated to be payable, the currency, currencies or currency units in which
payment of the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the periods
within which and the terms and conditions upon which such election is to be
made;
24
(13) if other
than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 5.02;
(14)
if
applicable, that the Securities of the series shall be subject to either or
both of Defeasance or Covenant Defeasance as provided in Article XIII;
provided that no
series of Securities that is convertible into Common Shares as provided in
Article XIV or convertible into or exchangeable for any other securities
pursuant to Section 3.01(17) shall be subject to Defeasance pursuant to Section
13.02;
(15)
if and
as applicable, that the Securities of the series shall be issuable in whole or
in part in the form of one or more Global Securities and, in such case, the
Depositary or Depositaries for such Global Security or Global Securities and
any circumstances other than those set forth in Section 3.05 in which any such
Global Security may be transferred to, and registered and exchanged for
Securities registered in the name of, a Person other than the Depositary for
such Global Security or a nominee thereof and in which any such transfer may be
registered;
(16) the
terms and conditions, if any, pursuant to which the Securities are convertible
into Common Shares of the Company pursuant to Article XIV, and any variation
thereof;
(17) the
terms and conditions, if any, pursuant to which the Securities are convertible
into or exchangeable for any other securities;
(18) any
addition to or change in the covenants set forth in Article X which applies to
Securities of the series; and
(19) any
other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section
9.01(5)).
All
Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 3.03) set forth, or
determined in the manner provided, in the Officers’ Certificate referred
to above or in any such indenture supplemental hereto.
If any
of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officers’ Certificate setting
forth the terms of the series.
The
Company may, from time to time, by adoption of a Board Resolution and subject
to compliance with any other applicable provisions of this Indenture, without
the consent of the Holders, create and issue pursuant to this Indenture
additional securities of any series of Securities (“Add
On Securities”)
having terms and conditions identical to those of such series of Outstanding
Securities, except that such Add On Securities:
25
(i) may have
a different issue date from such series of Outstanding Securities;
(ii) may have
a different amount of interest payable on the first Interest Payment Date after
issuance than is payable on such series of Outstanding Securities;
and
(iii) may
have terms specified in such Board Resolution for such Add On Securities making
appropriate adjustments to this Article III applicable to such Add On
Securities in order to conform to and ensure compliance with the Securities Act
(or applicable securities laws) which are not adverse in any material respect
to the Holder of any Outstanding Securities (other than such Add On Securities)
and which shall not affect the rights or duties of the Trustee.
Section
3.02 Denominations.
The
Securities of each series shall be issuable only in registered form without
coupons in such denominations as shall be specified as contemplated by Section
3.01. In the absence of any such specified denomination with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section
3.03 Execution,
Authentication, Delivery and Dating.
The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its President, one of its Vice
Presidents or its Treasurer under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant Secretaries or by its Chief
Financial Officer. The signature of any of these officers on the Securities may
be manual or facsimile.
Securities
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities of any Series executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 2.01 and
3.01, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the
form of such Securities has been established by or pursuant to Board Resolution
as permitted by Section 2.01, that such form has been established in conformity
with the provisions of this Indenture;
26
(2) if the
terms of such Securities have been established by or pursuant to Board
Resolution as permitted by Section 3.01, that such terms have been established
in conformity with the provisions of this Indenture; and
(3) that
such Securities, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to
general equity principles.
If such
form or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee’s own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding
the provisions of Section 3.01 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officers’ Certificate otherwise required
pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each
Security shall be dated the date of its authentication.
No
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.09, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section
3.04 Temporary
Securities.
Pending
the preparation of definitive Securities of any series, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
27
If
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and
tenor.
Section
3.05 Registration,
Registration of Transfer and Exchange.
The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the “Security
Register”)
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed “Security
Registrar”
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon
surrender for registration of transfer of any Security of any series at the
office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount and tenor.
At the
option of the Holder, Securities of any series may be exchanged for other
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All
Securities issued upon any registration of transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every
Security presented or surrendered for registration of transfer or for exchange
shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
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No
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company or Security Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any
transfer.
The
Company shall not be required (1) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.03 and
ending at the close of business on the day of such mailing, or (2) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in
part.
Notwithstanding
any other provision in this Indenture, no Global Security may be transferred
to, or registered or exchanged for Securities registered in the name of, any
Person other than the Depositary for such Global Security or any nominee
thereof, and no such transfer may be registered, unless (1) such Depositary (A)
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or (B) has ceased to be a clearing agency registered
under the Exchange Act, (2) the Company executes and delivers to the Trustee a
Company Order that such Global Security shall be so transferable, registrable
and exchangeable, and such transfers shall be registrable, (3) there shall have
occurred and be continuing an Event of Default with respect to the Securities
evidenced by such Global Security or (4) there shall exist such other
circumstances, if any, as have been specified for this purpose as contemplated
by Section 3.01. Notwithstanding any other provision in this Indenture, a
Global Security to which the restriction set forth in the preceding sentence
shall have ceased to apply may be transferred only to, and may be registered
and exchanged for Securities registered only in the name or names of, such
Person or Persons as the Depositary for such Global Security shall have
directed and no transfer thereof other than such a transfer may be
registered.
Every
Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security to which the restriction set
forth in the first sentence of the preceding paragraph shall apply, whether
pursuant to this Section, Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall
be authenticated and delivered in the form of, and shall be, a Global
Security.
Section
3.06 Mutilated,
Destroyed, Lost and Stolen Securities.
If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there
shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee shall authenticate and deliver, in
29
lieu of
any such destroyed, lost or stolen Security, a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case
any such mutilated, destroyed, lost or stolen Security has become or is about
to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the
issuance of any new Security under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every
new Security of any series issued pursuant to this Section in exchange for any
mutilated Security or in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
that series duly issued hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section
3.07 Payment
of Interest; Interest Rights Preserved.
Except
as otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any
interest on any Security of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
“Defaulted
Interest”)
shall forthwith cease to be payable to the Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in Clause
(1) or (2) below:
(1) The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Security of such series and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the
30
Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at his
address as it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The
Company may make payment of any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject
to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Subject
to the provisions of Section 14.02, in the case of any Security which is
converted after any Regular Record Date and on or prior to the next succeeding
Interest Payment Date, interest whose Stated Maturity is on such Interest
Payment Date shall be payable on such Interest Payment Date notwithstanding
such conversion, and such interest (whether or not punctually paid or duly
provided for) shall be paid to the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the close of business on such
Regular Record Date. Except as otherwise expressly provided in the immediately
preceding sentence in the case of any Security which is converted, interest
whose Stated Maturity is after the date of conversion of such Security, shall
not be payable.
Section
3.08 Persons
Deemed Owners.
Prior to
due presentment of a Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and any premium and (subject to
Section 3.07) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
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Section
3.09 Cancellation.
All
Securities surrendered for payment, redemption, registration of transfer or
exchange or conversion or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of by the Trustee in
its customary manner.
Section
3.10 Computation
of Interest.
Except
as otherwise specified as contemplated by Section 3.01 for Securities of any
series, interest on the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months.
Section
3.11 CUSIP
Numbers.
The
Company in issuing the Securities may use “CUSIP” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” numbers
in notices of redemption as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any changes in the “CUSIP”
numbers.
ARTICLE
IV
SATISFACTION
AND DISCHARGE
Section
4.01 Satisfaction
and Discharge of Indenture.
This
Indenture shall upon Company Request cease to be of further effect (except as
to any surviving rights of conversion or of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all
Securities theretofore authenticated and delivered (other than (i) Securities
which have been destroyed, lost or stolen and which have been
32
replaced
or paid as provided in Section 3.06 and (ii) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust)
have been delivered to the Trustee for cancellation; or
(B) all such
Securities not theretofore delivered to the Trustee for
cancellation
(i) have
become due and payable, or
(ii) will
become due and payable at their Stated Maturity within one year,
or
(iii) are to
be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the
Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(3) the
Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 6.07, and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 4.02 shall survive such
satisfaction and discharge.
Section
4.02 Application
of Trust Money.
All
money deposited with the Trustee pursuant to Section 4.01 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium
and interest for whose payment such money has been deposited with the
Trustee.
33
ARTICLE V
REMEDIES
Section
5.01 Events
of Default.
“Event
of Default”,
wherever used herein with respect to Securities of any series, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default
in the payment of any interest upon any Security of that series when it becomes
due and payable, and the continuance of such default for a period of
30 days; or
(2) default
in the payment of the principal of (or premium, if any, on) any Security of
that series at its Maturity; or
(3) default
in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series, and the continuance of such default for a period of 30
days; or
(4) default
in the performance, or breach, of any covenant or warranty of the Company in
this Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and continuance of
such default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
“Notice of Default” hereunder; or
(5) the
Company shall fail to pay any Indebtedness in excess of $10,000,000 owing by
the Company, or any interest or premium thereon, when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Indebtedness, or the Company shall
fail to perform any term, covenant or agreement on its part to be performed
under any agreement or instrument evidencing or securing or relating to any
such Indebtedness, if the effect of such failure in either case is that the
maturity of such Indebtedness is duly accelerated, without such Indebtedness
having been discharged or such acceleration having been rescinded or annulled,
in each such case, within a period of 10 days after there shall have been
given, by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by Holders of at least 25% in principal amount of the
Outstanding Securities of that series, a written notice specifying such default
and
34
requiring
the Company to cause such Indebtedness to be discharged or cause such
acceleration to be rescinded or annulled, as the case may be, and stating that
such notice is a “Notice of Default” hereunder (the Trustee shall not
be deemed to have knowledge of a default under this subsection (5) unless it
shall have actual knowledge thereof); provided,
however, that,
subject to the provisions of Sections 6.01 and 6.05, the Trustee shall not be
deemed to have knowledge of such failure to pay unless either (A) a Responsible
Officer of the Trustee shall have actual knowledge of such failure to pay or
(B) the Trustee shall have received written notice thereof from the Company,
from any Holder, from the holder of any such Indebtedness or from the trustee
thereunder; or
(6) the
entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or any Material Subsidiary in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company or any Material Subsidiary as bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
Material Subsidiary under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Material Subsidiary or of any
substantial part of their respective properties, or ordering the winding up or
liquidation of their respective affairs, and the continuance of any such decree
or order for relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or
(7) the
commencement by the Company or any Material Subsidiary of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated as bankrupt or insolvent, or the consent by the Company or any
Material Subsidiary to the entry of a decree or order for relief in respect of
the Company or any Material Subsidiary in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against the Company or any Material Subsidiary, or the filing by
the Company or any Material Subsidiary of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law, or
the consent by the Company or any Material Subsidiary to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any Material Subsidiary or of any substantial part of their
respective properties, or the making by the Company or any Material Subsidiary
of an assignment for the benefit of creditors, or the admission by the Company
or any Material Subsidiary in writing of the Company’s or any Material
Subsidiary’s inability to pay the Company’s or any Material
Subsidiary’s, as applicable, debts generally as they become due, or the
taking of corporate action by the Company or any Material Subsidiary in
furtherance of any such action; or
(8) any
other Event of Default provided with respect to Securities of that
series.
35
Section
5.02 Acceleration
of Maturity; Rescission and Annulment.
If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the entire principal amount, together
with all accrued and unpaid interest and premium, if any (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof), of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. Notwithstanding the
foregoing, if an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing under Section 5.01(6) or Section
5.01(7), then in every such case the entire principal amount, together with all
accrued and unpaid interest and premium, if any (or, if any of the Securities
of that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the terms thereof),
of all of the Securities of that series shall be due and payable
immediately.
At any
time after such a declaration of acceleration with respect to Securities of any
series has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in principal amount of the Outstanding Securities of
that series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
(1) the
Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all
overdue interest on all Securities of that series,
(B) the
principal of (and premium, if any, on) any Securities of that series which have
become due otherwise than by such declaration of acceleration and any interest
thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the
extent that payment of such interest is lawful, interest upon overdue interest
at the rate or rates prescribed therefor in such Securities, and
(D) all sums
paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all
Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.13.
36
No such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Section
5.03 Collection
of Indebtedness and Suits for Enforcement by Trustee.
The
Company covenants that if:
(1) default
is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days,
or
(2) default
is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof,
the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an
Event of Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem necessary to protect
and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section
5.04 Trustee
May File Proofs of Claim.
In case
of any judicial proceeding relative to the Company (or any other obligor upon
the Securities), its property or its creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under the Trust Indenture Act in order to have claims of
the Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.07.
No
provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided,
however, that
the Trustee may, on behalf of the Holders, vote for the
37
election
of a trustee in bankruptcy or similar official and be a member of a
creditors’ or other similar committee.
Section
5.05 Trustee
May Enforce Claims Without Possession of Securities.
All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section
5.06 Application
of Money Collected.
Any
money collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or any premium or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the
payment of all amounts due the Trustee under Section 6.07;
SECOND: To the
payment of the amounts then due and unpaid for principal of and any premium and
interest on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal and
any premium and interest, respectively; and
THIRD: To the
Company.
Section
5.07 Limitation
on Suits.
No
Holder of any Security of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such
Xxxxxx has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities of that series;
(2) the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such
Holder or Holders have offered to the Trustee reasonable indemnity satisfactory
to it against the costs, expenses and liabilities to be incurred in compliance
with such request;
38
(4) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(5) no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;
it being
understood and intended that no one or more of such Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section
5.08 Unconditional
Right of Holders to Receive Principal, Premium and Interest and to
Convert.
Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the
principal of and any premium and (subject to Section 3.07) interest on such
Security on the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to convert such Security in
accordance with Article XIV and to institute suit for the enforcement of
any such payment and right to convert, and such rights shall not be impaired
without the consent of such Holder.
Section
5.09 Restoration
of Rights and Remedies.
If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section
5.10 Rights
and Remedies Cumulative.
Except
as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
39
Section
5.11 Delay
or Omission Not Waiver.
No delay
or omission of the Trustee or of any Holder of any Securities to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section
5.12 Control
by Holders.
The
Holders of a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of such
series; provided
that
(1) such
direction shall not be in conflict with any rule of law or with this Indenture
or be unjustly prejudicial to any Holders not joining in such
direction,
(2) the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) subject
to the provisions of Section 6.01, the Trustee shall have the right to decline
to follow any such direction if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee, determine, and the Trustee
shall have received a legal opinion stating, that the proceedings so directed
would involve the Trustee in personal liability.
Section
5.13 Waiver
of Past Defaults.
The
Holders of not less than a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such series and
its consequences, except a default
(1) in the
payment of the principal of or any premium or interest on any Security of such
series, or
(2) in
respect of a covenant or provision hereof which under Article IX cannot be
modified or amended without the consent of the Holder of each Outstanding
Security of such series affected.
Upon any
such waiver, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
40
Section
5.14 Undertaking
for Costs.
In any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any
such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall apply to any suit
instituted by the Trustee, to any suit instituted by any Holders of the
Securities, or group of Holders of the Securities, holding in the aggregate
more than 10% of principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder of the Outstanding Securities for the
enforcement of the payment of principal of or interest on any Outstanding
Securities held by such Holder, on or after the respective due dates expressed
in such Outstanding Securities; and provided,
further, that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company or in any suit for the enforcement of the right
to convert any Security in accordance with Article XIV.
Section
5.15 Waiver
of Usury, Stay or Extension Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.
ARTICLE
VI
THE
TRUSTEE
The
Trustee hereby accepts the trust imposed upon it by this Indenture and
covenants and agrees to perform the same, as herein expressed.
Section
6.01 Duties
of Trustee.
(a) If an
Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture and use the same
degree of care and skill in their exercise as a prudent person would exercise
or use under the circumstances in the conduct of his own affairs.
(b) Except
during the continuance of an Event of Default:
(1) The
Trustee need perform only those duties as are specifically set forth in this
Indenture and no others, and no covenants or obligations shall be implied in or
read into this Indenture.
41
(2) In the
absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they substantially conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The
Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except
that:
(1) This
paragraph does not limit the effect of paragraph (b) of this Section
6.01.
(2) The
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(3) The
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to
Section 5.12.
(d) No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder or to take or omit to take any action under this
Indenture.
(e) Every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), (c), (d) and (f) of this Section 6.01.
(f) The
Trustee shall not be liable for interest on any assets received by it except as
the Trustee may agree in writing with the Company. Assets held in trust by the
Trustee need not be segregated from other assets except to the extent required
by law.
Section
6.02 Rights
of Trustee.
Subject
to Section 6.01:
(a) The
Trustee may rely conclusively on any document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact or
matter stated in any document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such certificate
or opinion.
(c) The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due
care.
42
(d) The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or
powers.
(e) The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, notice,
request, direction, consent, order, bond, debenture, or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such
investigation.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Holders, pursuant to the provisions of this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity satisfactory
to it against the costs, expenses and liabilities which may be incurred therein
or thereby.
(g) The
Trustee may consult with counsel of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection of any action taken, suffered or omitted by in hereunder in good
faith and in reliance thereon.
(h) The
Trustee shall not be deemed to have notice of any Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture.
(i) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and each agent, custodian and other Person employed to act
hereunder.
Section
6.03 Individual
Rights of Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Securities and may otherwise deal with the Company, its Subsidiaries, or
their respective Affiliates with the same rights it would have if it were not
Trustee. Any Paying Agent or Security Registrar may do the same with like
rights. However, the Trustee must comply with Sections 6.08, 6.09 and
6.10.
Section
6.04 Trustee’s
Disclaimer.
The
Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities and it shall not be accountable for the
Company’s use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities, other than the Trustee’s
certificate of authentication, or the use or application of any funds received
by a Paying Agent other than the Trustee.
43
Section
6.05 Notice
of Default.
If an
Event of Default with respect to Securities of any series occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Holder of Securities of such series notice of the uncured Event of Default
within 45 days after such Event of Default occurs. Except in the case of an
Event of Default in payment of principal (or premium, if any) of, or interest
on, any Security, the Trustee may withhold the notice if and so long as a
Responsible Officer in good faith determines that withholding the notice is in
the interest of the Holders of Securities of such series.
Section
6.06 Reports
by Trustee to Holders.
Within
60 days after each February 15 beginning with the February 15 following the
date of this Indenture, the Trustee shall mail to each Holder a brief report
dated as of such February 15 that complies with Trust Indenture Act Section
313(a) if such report is required by such Trust Indenture Act Section 313(a).
The Trustee also shall comply with Trust Indenture Act Sections 313(b) and
313(c).
The
Company shall promptly notify the Trustee in writing if the Securities of any
series become listed on any stock exchange or automatic quotation
system.
A copy
of each report at the time of its mailing to Holders shall be mailed to the
Company and filed with the Commission and each stock exchange, if any, on which
the Securities are listed.
Section
6.07 Compensation
and Indemnity.
The
Company shall pay to the Trustee from time to time such compensation for its
services as the Company and the Trustee shall from time to time agree in
writing. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee’s agents,
accountants, experts and counsel.
The
Company shall indemnify each of the Trustee (in its capacity as Trustee) and
any predecessor Trustee and each of their respective officers, directors,
attorneys-in-fact and agents for, and hold it harmless against, any claim,
demand, expense (including, but not limited to, reasonable compensation,
disbursements and expenses of the Trustee’s agents and counsel), loss,
charges (including taxes (other than taxes based upon the income of the
Trustee)) or liability incurred by them without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this trust and their rights or duties hereunder including the reasonable costs
and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall provide reasonable cooperation at the
Company’s expense in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel.
44
The
Company need not pay for any settlement made without its written consent which
consent shall not be unreasonably withheld. The Company need not reimburse any
expense or indemnify against any loss or liability to the extent incurred by
the Trustee as determined by a court of competent jurisdiction to have been
caused by its own negligence, bad faith or willful misconduct.
To
secure the Company’s payment obligations in this Section 6.07, the Trustee
shall have a lien prior to the Securities on all assets held or collected by
the Trustee, in its capacity as Trustee, except assets held in trust to pay
principal and premium, if any, of or interest on particular
Securities.
When the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 5.01(6) or (7) occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any
Bankruptcy Law.
The
Company’s obligations under this Section 6.07 and any lien arising
hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company’s obligations pursuant to Article IV of this
Indenture and any rejection or termination of this Indenture under any
Bankruptcy Law.
Section
6.08 Replacement
of Trustee.
The
Trustee may resign at any time with respect to the Securities of one or more
series by so notifying the Company in writing. The Holder or Holders of a
majority in principal amount of the outstanding Securities of a series may
remove the Trustee with respect to Securities of such series by so notifying
the Company and the Trustee in writing and may appoint a successor trustee with
respect to Securities of such series with the Company’s consent. The
Company may remove the Trustee if:
(1) the
Trustee fails to comply with Section 6.10;
(2) the
Trustee is adjudged bankrupt or insolvent;
(3) a
receiver, custodian, or other public officer takes charge of the Trustee or its
property; or
(4) the
Trustee becomes incapable of acting.
If the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee,
with respect to the Securities of one or more series, for any reason, the
Company shall promptly appoint a successor Trustee, with respect to Securities
of that or those series. Within one year after the successor Trustee with
respect to a series of Securities takes office, the Holder or Holders of a
majority in principal amount of the Securities of such series may appoint a
successor Trustee with respect to such series to replace the successor Trustee
appointed by the Company.
A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Immediately after that and provided that
all sums owing to
45
the
Trustee provided for in Section 6.07 have been paid, the retiring Trustee shall
transfer all property held by it as Trustee with respect to such series of
Securities to the successor Trustee, subject to the lien provided in Section
6.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee with respect to
one or more series of Securities shall mail notice of its succession to each
Holder of Securities of that or those series.
If a
successor Trustee with respect to a series of Securities does not take office
within 60 days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holder or Holders of at least 10% in principal
amount of the outstanding Securities of that series may petition at the expense
of the Company any court of competent jurisdiction for the appointment of a
successor Trustee with respect to such series.
If the
Trustee fails to comply with Section 6.10, any Holder of Securities of a series
may petition any court of competent jurisdiction for the removal of the Trustee
with respect to such series and the appointment of a successor Trustee with
respect to such series.
Notwithstanding
replacement of the Trustee pursuant to this Section 6.08, the Company’s
obligations under Section 6.07 shall continue for the benefit of the retiring
Trustee.
Section
6.09 Successor
Trustee by Xxxxxx, Etc.
If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
resulting, surviving or transferee corporation without any further act shall,
if such resulting, surviving or transferee corporation is otherwise eligible
hereunder, be the successor Trustee.
Section
6.10 Eligibility;
Disqualification.
The
Trustee shall at all times satisfy the requirements of Trust Indenture Act
Section 310(a)(1) and Trust Indenture Act Section 310(a)(5). The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
Trust Indenture Act Section 310(b).
Section
6.11 Preferential
Collection of Claims against Company.
The
Trustee shall comply with Trust Indenture Act Section 311(a), excluding any
creditor relationship listed in Trust Indenture Act Section 311(b). A Trustee
who has resigned or been removed shall be subject to Trust Indenture Act
Section 311(a) to the extent indicated.
ARTICLE VII
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section
7.01 Company
to Furnish Trustee Names and Addresses of Holders.
The
Company will furnish or cause to be furnished to the Trustee:
46
(1) semi-annually,
not more than 15 days after each Regular Record Date, a list for each series of
Securities, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Securities of such series as of the Regular
Record Date, as the case may be, and
(2) at such
other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished;
excluding from
any such list names and addresses received by the Trustee in its capacity as
Security Registrar.
Section
7.02 Preservation
of Information; Communications to Holders.
The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 7.01 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt of a
new list so furnished.
The
rights of the Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every
Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section
7.03 Reports
by Trustee.
The
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
A copy
of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee with each stock exchange upon which any Securities are
listed, with the Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange or delisted
therefrom.
Section
7.04 Reports
by Company.
The
Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant to such Act; provided that
any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the
47
Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer’s Certificates).
ARTICLE
VIII
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
Section
8.01 When
Company May Merge, Etc.
The
Company may not, in a single transaction or through a series of related
transactions, consolidate with or merge with or into any other person, or,
directly or indirectly, sell, lease, assign, transfer or convey its properties
and assets as an entirety or substantially as an entirety (computed on a
consolidated basis) to another person or group of affiliated persons, and
another person or group of affiliated persons may not directly or indirectly
sell, lease, assign, transfer or convey its properties and assets as an entity
or substantially as an entity (computed on a consolidated basis) to the
Company, unless:
(1) the
Company shall be the continuing person, or the person (if other than the
Company) formed by such consolidation or into which the Company is merged or to
which all or substantially all of the properties and assets of the Company are
transferred as an entirety or substantially as an entirety (the Company or such
other person being hereinafter referred to as the “Surviving
Person”),
shall be a corporation organized and validly existing under the laws of
Bermuda, the United States, any State thereof or the District of Columbia, any
member country of the European Union or any other country recognized by the
United States and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form and substance satisfactory to
the Trustee, all the obligations of the Company under the Securities and this
Indenture and the Indenture, so supplemented, shall remain in full force and
effect;
(2) immediately
after giving effect to such transaction and the assumption of the obligations
as set forth in clause (1), above, no Event of Default shall have occurred and
be continuing; and
(3) if a
supplemental indenture is required in connection with such transaction, the
Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, assignment,
or transfer and such supplemental indenture comply with this Article VIII and
that all conditions precedent herein provided relating to such transaction have
been satisfied.
Section
8.02 Successor
Corporation Substituted.
Upon any
consolidation or merger, or any transfer of assets in accordance with Section
8.01, the Surviving Person formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may
48
exercise
every right and power of, the Company under this Indenture with the same effect
as if such Surviving Person had been named as the Company herein. When a
Surviving Person duly assumes all of the obligations of the Company pursuant
hereto and pursuant to the Securities, the predecessor shall be relieved of the
performance and observance of all obligations and covenants of this Indenture
and the Securities, including, but not limited to, the obligation to make
payment of the principal of and interest, if any, on all the Securities then
outstanding, and the Company may thereupon or any time thereafter be liquidated
and dissolved.
ARTICLE
IX
SUPPLEMENTAL
INDENTURES
Section
9.01 Supplemental
Indentures Without Consent of Holders.
Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to
evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company herein and in the
Securities; or
(2) to add
to the covenants of the Company for the benefit of the Holders of all or any
series of Securities (and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add
any additional Events of Default for the benefit of the Holders of all or any
series of Securities (and if such additional Events of Default are to be for
the benefit of less than all series of Securities, stating that such additional
Events of Default are expressly being included solely for the benefit of such
series); or
(4) to add
to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities in
uncertificated form; or
(5) to add
to, change or eliminate any of the provisions of this Indenture in respect of
one or more series of Securities; provided that
any such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or (B)
shall become effective only when there is no such Security Outstanding;
or
49
(6) to
secure the Securities pursuant to the requirements of Article X or otherwise;
or
(7) to
establish the form or terms of Securities of any series as permitted by
Sections 2.01 and 3.01; or
(8) to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11; or
(9) to make
provisions with respect to the conversion rights of Holders pursuant to the
requirements of Article XIV; or
(10) to cure
any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture;
provided that
such action pursuant to this clause (10) shall not adversely affect the
interests of the Holders of Securities of any series in any material respect;
or
(11) to
maintain the qualification of this Indenture under the Trust Indenture
Act.
Section
9.02 Supplemental
Indentures with Consent of Holders.
With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided,
however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change
the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate
of interest or the time of payment of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02,
or change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or adversely affect the right to convert any Security as provided in
Article XIV, or modify the provisions of this Indenture with respect to
the subordination of any series of the Securities in a manner adverse to the
Holders thereof, or
50
(2) reduce
the percentage in principal amount of the Outstanding Securities of any series,
the consent of whose Holders is required for any such supplemental indenture,
or the consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify
any of the provisions of this Section or Section 5.13, except to increase any
such percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided,
however, that
this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to “the Trustee” and concomitant
changes in this Section, or the deletion of this proviso, in accordance with
the requirements of Sections 6.11 and 9.01(8), or
(4) change
any obligation of ours to maintain an office or agency, or
(5) change
any obligation of ours to pay additional amounts, or
(6) adversely
affect the right of repayment or repurchase at the option of the Holder,
or
(7) reduce
or postpone any sinking fund or similar provision.
A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall
not be necessary for any Act of Holders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Section
9.03 Execution
of Supplemental Indentures.
In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture or
otherwise.
Section
9.04 Effect
of Supplemental Indentures.
Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form
51
a part
of this Indenture for all purposes; and every Holder of Securities theretofore
or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section
9.05 Conformity
with Trust Indenture Act.
Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
Section
9.06 Reference
in Securities to Supplemental Indentures.
Securities
of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE
X
COVENANTS
Section
10.01 Payment
of Securities.
The
Company covenants and agrees for the benefit of each series of Securities that
it will pay the principal of and interest on the Securities of that series on
the dates and in the manner provided in the Securities of that series and this
Indenture. An installment of principal, premium, if any, or interest on the
Securities shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Company or an Affiliate of the Company) holds for
the benefit of the Holders, on that date, immediately available funds deposited
and designated for and sufficient to pay the installment.
The
Company shall pay interest on overdue principal and on overdue installments of
interest at the rate specified in the Securities compounded semi-annually, to
the extent lawful.
Section
10.02 Maintenance
of Office or Agency.
The
Company shall maintain in the Place of Payment for any series of Securities, an
office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange, where Securities of any series that is
convertible may be surrendered for conversion, and where notices and demands to
or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office.
52
The
Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided,
however, that
no such designation or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency. The Company hereby
initially designates the principal corporate trust office of the Trustee as
such office of the Company.
Section
10.03 Money
for Securities Payments to Be Held in Trust.
If the
Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of
or any premium or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure
so to act.
Whenever
the Company shall have one or more Paying Agents for any series of Securities,
it will, on or prior to each due date of the principal of or any premium or
interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The
Company will cause each Paying Agent for any series of Securities other than
the Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will (1) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
Any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security
shall
53
thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided,
however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in New York City, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the
Company.
Section
10.04 Corporate
Existence.
Subject
to Article VIII, the Company shall do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence and the
corporate or other existence of each of its Subsidiaries in accordance with the
respective organizational documents of each of them and the rights (charter and
statutory) and corporate franchises of the Company and each of its
Subsidiaries; provided,
however, that
the Company shall not be required to preserve, with respect to itself, any
right or franchise, and with respect to any of its Subsidiaries, any such
existence, right or franchise, if (a) the Board of Directors of the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and (b) the loss thereof is not
disadvantageous in any material respect to the Holders.
Section
10.05 Payment
of Taxes and Other Claims.
The
Company shall, and shall cause each of its Subsidiaries to, pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges (including withholding taxes
and any penalties, interest and additions to taxes) levied or imposed upon the
Company or any of its Subsidiaries or properties and assets of the Company or
any of its Subsidiaries and (ii) all lawful claims, whether for labor,
materials, supplies, service or anything else, which have become due and
payable and which by law have or may become a Lien upon the property and assets
of the Company or any of its Subsidiaries; provided,
however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which disputed amounts adequate reserves have been
established in accordance with generally accepted accounting
principles.
Section
10.06 Compliance
Certificate; Notice of Default.
(a) The
Company shall deliver to the Trustee within 120 days after the end of its
fiscal year an Officers’ Certificate (one of the signatories of which
shall be the Company’s principal executive officer, principal financial
officer or principal accounting officer) complying with Section 314(a)(4) of
the Trust Indenture Act and stating that a review of its activities and the
activities of its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its obligations
under this Indenture (all without regard to
54
periods
of grace, which shall be deemed fulfilled unless and until the expiration of
such periods) or notice requirements) and further stating, as to each such
officer signing such certificate, whether or not the signer knows of any
failure by the Company or any Subsidiary of the Company to comply with any
conditions or covenants in this Indenture and, if such signer does know of such
a failure to comply, the certificate shall describe such failure with
particularity. The Officers’ Certificate shall also notify the Trustee
should the relevant fiscal year end on any date other than the current fiscal
year end date.
(b) The
Company shall, so long as any of the Securities of any series are outstanding,
deliver to the Trustee, immediately upon becoming aware of any Event of Default
with respect to such series under this Indenture, an Officers’ Certificate
specifying such Event of Default and what action the Company is taking or
proposes to take with respect thereto. The Trustee shall not be deemed to have
knowledge of a an Event of Default unless one of its Responsible Officers
receives notice of the Event of Default giving rise thereto from the Company or
any of the Holders.
Section
10.07 Waiver
of Stay, Extension or Usury Laws.
The
Company covenants for the benefit of each series of Securities (to the extent
that it may lawfully do so) that it will not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law wherever enacted which would
prohibit or forgive the Company from paying all or any portion of the principal
of or interest on the Securities of that series as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect
the covenants or the performance of this Indenture; and (to the extent that it
may lawfully do so) the Company hereby expressly waives for the benefit of each
series of Securities all benefit or advantage of any such law insofar as such
law applies to the Securities of that series, and covenants for the benefit of
each series of Securities that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee with respect to that
series, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section
10.08 Limitation
on Liens.
The
Company shall not, and shall not permit any of its Material Subsidiaries to,
issue, incur, assume or Guaranty any Indebtedness for borrowed money secured by
a Lien (other than Permitted Liens) upon any shares of the Voting Stock of a
Material Subsidiary without effectively providing that the Securities (and if
the Company so elects, any other indebtedness of the Company ranking on a
parity with the Securities) shall be secured equally and ratably with, or prior
to, any such secured Indebtedness so long as such Indebtedness remains
outstanding.
Section
10.09 Limitation
on Transactions with Affiliates.
The
Company will not, and will not permit any of its Subsidiaries to, sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or asset from, or enter into any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an “Affiliate
Transaction”),
unless (a) such Affiliate Transaction is made on terms that are no less
favorable to
55
the
Company or the relevant Subsidiary than those that would have been obtained in
a comparable transaction by the Company or such Subsidiary with an unrelated
person and (b) the Company delivers to the Trustee with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $25 million in any fiscal year, a
resolution of the Board of Directors set forth in an Officers’ Certificate
certifying that such Affiliate Transaction or series of related Affiliate
Transactions complies with clause (a) above and such Affiliate Transaction or
series of related Affiliate Transactions has been approved by a majority of the
disinterested members of the Board of Directors; provided,
however, that
(i) any employment agreement entered into by the Company or any of its
Subsidiaries in the ordinary course of business and consistent with the past
practice of the Company or such Subsidiary; (ii) transactions between or among
the Company and/or its Subsidiaries, (iii) Affiliate Transactions entered into
prior to the date of issuance of the Securities under this Indenture and
(iv) Affiliate Transactions entered into in the ordinary course of
business of the Company or such Subsidiary, shall be deemed not to be Affiliate
Transactions.
ARTICLE
XI
REDEMPTION
OF SECURITIES
Section
11.01 Applicability
of Article.
Securities
of any series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 3.01 for Securities of any series) in accordance with
this Article.
Section
11.02 Election
to Redeem; Notice to Trustee.
The
election of the Company to redeem any Securities shall be evidenced by a Board
Resolution. In case of any redemption at the election of the Company of less
than all the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers’
Certificate evidencing compliance with such restriction.
Section
11.03 Selection
by Trustee of Securities to Be Redeemed.
If less
than all the Securities of any series are to be redeemed (unless all of the
Securities of such series and of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of
56
that
series. If less than all of the Securities of such series and of a specified
tenor are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding
sentence.
If any
Security selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Security
so selected, the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed shall be treated by
the Trustee as Outstanding for the purpose of such selection.
The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of any Securities redeemed or to be redeemed only in part, to the portion of
the principal amount of such Securities which has been or is to be
redeemed.
Section
11.04 Notice
of Redemption.
Notice
of redemption shall be given by first-class mail, postage prepaid, mailed not
less than 30 nor more than 60 days prior to the Redemption Date, to each Holder
of Securities to be redeemed, at his address appearing in the Security
Register.
All
notices of redemption shall state:
(1) the
Redemption Date,
(2) the
Redemption Price,
(3) if less
than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption of any Securities, the
principal amounts) of the particular Securities to be redeemed,
(4) that on
the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) in the
case of any Securities that are convertible pursuant to Article XIV, the
conversion price or rate, the date on which the right to convert the principal
of the Securities to be redeemed will terminate and the place or places where
such Securities may be surrendered for conversion,
(6) the
place or places where such Securities are to be surrendered for payment of the
Redemption Price,
57
(7) that the
redemption is for a sinking fund, if such is the case, and
(8) applicable
CUSIP Numbers.
Notice
of redemption of Securities to be redeemed at the election of the Company shall
be given by the Company or, at the Company’s request, by the Trustee in
the name and at the expense of the Company and shall be
irrevocable.
Section
11.05 Deposit
of Redemption Price.
Prior to
any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date other
than any Securities called for redemption on that date which have been
converted prior to the date of such deposit.
If any
Security called for redemption is converted, any money deposited with the
Trustee or with any Paying Agent or so segregated and held in trust for the
redemption of such Security shall (subject to any right of the Holder of such
Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 3.07) be paid to the Company upon Company Request or,
if then held by the Company, shall be discharged from such trust.
Section
11.06 Securities
Payable on Redemption Date.
Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided,
however, that,
unless otherwise specified as contemplated by Section 3.01, installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.07.
If any
Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from
the Redemption Date at the rate prescribed therefor in the
Security.
Section
11.07 Securities
Redeemed in Part.
Any
Security which is to be redeemed only in part shall be surrendered at a Place
of Payment thereof (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any
58
authorized
denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security
so surrendered.
ARTICLE
XII
SINKING
FUNDS
Section
12.01 Applicability
of Article.
The
provisions of this Article shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a “mandatory sinking
fund payment”, and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
“optional sinking fund payment”. If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 12.02. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
Section
12.02 Satisfaction
of Sinking Fund Payments with Securities.
At its
option, the Company may reduce or satisfy its obligation to make any mandatory
sinking fund payment by delivering to the Trustee at least 45 days before any
mandatory sinking fund payment date (or such shorter period as may be
acceptable to the Trustee) (i) Securities of the series which are the subject
of the mandatory sinking fund payment which have been acquired (other than by
mandatory redemption) by the Company at any time together with an
Officers’ Certificate stating the election of the Company to have credited
against such sinking fund payment the principal amount of the Securities so
delivered, (ii) an Officers’ Certificate stating the election of the
Company to have credited against such sinking fund payment a specified
principal amount of Securities of the series that are the subject of the
mandatory sinking fund payment which have been acquired (other than by
mandatory redemption) by the Company and theretofore surrendered to the Trustee
for cancellation (including, for such purpose, Securities surrendered for
conversion pursuant to Article XIV), (iii) an Officers’ Certificate
stating the election of the Company to have credited against such sinking fund
payment a specified principal amount of the Securities of the series which are
the subject of the mandatory sinking fund payment which have been called for
redemption at the option of the Company or with the proceeds of any optional
sinking fund payment and which are no longer Outstanding, or (iv) any
combination of the foregoing. Each Officers’ Certificate shall state the
principal amount of the Securities of the relevant series issued and
outstanding at the date of such Officers’ Certificate, that no Event of
Default has occurred and is continuing with respect to the Securities of such
series and that the Securities forming the basis of such credit do not include
any Securities theretofore mandatorily redeemed or called for mandatory
redemption pursuant to the terms of the relevant series of the Securities. All
Securities made the basis of a credit against a mandatory sinking fund payment
shall be credited at 100% of the principal amount thereof. Any mandatory
sinking fund payment or payments may at any time be anticipated by
the
59
Company
by obtaining credit thereon in the manner above provided, such credits to apply
against mandatory sinking fund payments in the order in which they become
due.
Section
12.03 Redemption
of Securities for Sinking Fund.
Not less
than 45 days (or such shorter period as may be acceptable to the Trustee)
prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee an Officers’ Certificate specifying
the amount of the next ensuing sinking fund payment for that series pursuant to
the terms of that series, the portion thereof, if any, which is to be satisfied
by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 12.02
and will also deliver to the Trustee any Securities to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 11.03 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner
provided in Section 11.04. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the manner stated in
Sections 11.06 and 11.07.
The
Trustee shall not redeem any Securities with sinking fund moneys or mail any
notice of redemption of Securities by operation of the sinking fund during the
continuance of a default in payment of interest on the Securities of such
series or of any Event of Default with respect to the Securities of such series
(other than an Event of Default occurring as a consequence of this paragraph),
except that if notice of redemption of any Securities shall theretofore have
been given, the Trustee shall redeem such Securities if cash sufficient for
that purpose shall be deposited with the Trustee for that purpose in accordance
with the terms of the series of the Securities. Except as aforesaid, any moneys
in the sinking fund at the time when any such Default or Event of Default shall
occur, and not held for payment or redemption of particular Securities of the
series, and any moneys thereafter paid into the sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of all the Securities of the series; provided, however, that in case
such default or Event of Default shall have been cured or waived as provided in
Section 5.13, such moneys shall thereafter be applied in accordance with the
terms of the Securities applicable to sinking funds.
ARTICLE
XIII
DEFEASANCE
AND COVENANT DEFEASANCE
Section
13.01 Company’s
Option to Effect Defeasance or Covenant Defeasance.
The
Company may elect, at its option by Board Resolution at any time, to have
either Section 13.02 or Section 13.03 applied to the Outstanding Securities of
any series designated pursuant to Section 3.01 as being defeasible pursuant to
this Article XIII (hereinafter called a “Defeasible
Series”),
upon compliance with the conditions set forth below in this Article XIII;
provided that
Section 13.02 shall not apply to any series of Securities that is
convertible into Common Shares as provided in Article XIV or convertible
into or exchangeable for any other securities pursuant to
Section 3.01(17).
60
Section
13.02 Defeasance
and Discharge.
Upon the
Company’s exercise of the option provided in Section 13.01 to have this
Section 13.02 applied to the Outstanding Securities of any Defeasible Series
and subject to the proviso to Section 13.01, the Company shall be deemed to
have been discharged from its obligations with respect to the Outstanding
Securities of such series as provided in this Section on and after the date the
conditions set forth in Section 13.04 are satisfied (hereinafter called
“Defeasance”).
For this purpose, such Defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations under
the Securities of such series and this Indenture insofar as the Securities of
such series are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), subject to the
following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of Securities of such series to receive,
solely from the trust fund described in Section 13.04 and as more fully set
forth in such Section, payments in respect of the principal of and any premium
and interest on such Securities of such series when payments are due, (2) the
Company’s obligations with respect to the Securities of such series under
Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (4) this Article XIII.
Subject to compliance with this Article XIII, the Company may exercise its
option provided in Section 13.01 to have this Section 13.02 applied to the
Outstanding Securities of any Defeasible Series notwithstanding the prior
exercise of its option provided in Section 13.01 to have Section 13.03 applied
to the Outstanding Securities of such series.
Section
13.03 Covenant
Defeasance.
Upon the
Company’s exercise of the option provided in Section 13.01 to have this
Section 13.03 applied to the Outstanding Securities of any Defeasible Series,
(1) the Company shall be released from its obligations under Section 8.01, and
Sections 10.04, 10.05, 10.08 and 10.09, and (2) the occurrence of any event
specified in Sections 5.01(3), 5.01(4) (with respect to any of Sections 8.01,
10.04, 10.05, 10.08 and 10.09), 5.01(5) and 5.01(8) shall be deemed not to be
or result in an Event of Default, in each case with respect to the Outstanding
Securities of such series as provided in this Section on and after the date the
conditions set forth in Section 13.04 are satisfied (hereinafter called
“Covenant
Defeasance”).
For this purpose, such Covenant Defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 5.01(4)), whether directly or indirectly by reason of
any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and the Securities of such series
shall be unaffected thereby.
Section
13.04 Conditions
to Defeasance or Covenant Defeasance.
The
following shall be the conditions to application of either Section 13.02 or
Section 13.03 to the Outstanding Securities of any Defeasible
Series:
61
(1) The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee that satisfies the requirements contemplated by
Section 6.09 and agrees to comply with the provisions of this Article XIII
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of Outstanding Securities of such series, (A)
money in an amount, or (B) U.S. Government Obligations that through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the Trustee
(or any such other qualifying trustee) to pay and discharge, the principal of
and any premium and interest on the Securities of such series on the respective
Stated Maturities, in accordance with the terms of this Indenture and the
Securities of such series. As used herein, “U.S.
Government Obligation”
means (x) any security that is (i) a direct obligation of the United States of
America for the payment of which full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or (ii),
is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect to any U.S.
Government Obligation specified in Clause (x) and held by such custodian for
the account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any such U.S. Government
Obligation; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by such
depositary receipt.
(2) In the
case of an election under Section 13.02, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling or
(B) since the date first set forth hereinabove, there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to the Securities of such series and will
be subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and discharge
were not to occur.
(3) In the
case of an election under Section 13.03, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of the
Outstanding Securities of such series will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant Defeasance
to be effected with
62
respect
to the Securities of such series and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be the case
if such deposit and Covenant Defeasance were not to occur.
(4) The
Company shall have delivered to the Trustee an Officer’s Certificate to
the effect that the Securities of such series, if then listed on any securities
exchange, will not be delisted as a result of such deposit.
(5) No Event
of Default or event that (after notice or lapse of time or both) would become
an Event of Default shall have occurred and be continuing at the time of such
deposit or, with regard to any Event of Default or any such event specified in
Sections 5.01(6) and (7), at any time on or prior to the 90th day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until after such 90th day).
(6) Such
Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming
all Securities are in default within the meaning of such Act).
(7) Such
Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under, any other agreement or instrument to which the
Company is a party or by which it is bound.
(8) The
Company shall have delivered to the Trustee an Officer’s Certificate and
an Opinion of Counsel, each stating that all conditions precedent with respect
to such Defeasance or Covenant Defeasance have been complied with.
(9) Such
Defeasance or Covenant Defeasance shall not result in the trust arising from
such deposit constituting an investment company within the meaning of the
Investment Company Act of 1940, as amended, unless such trust shall be
qualified under such Act or exempt from regulation thereunder.
Section
13.05 Deposited
Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous
Provisions.
All
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section and Section 13.06, the Trustee and any such other trustee are
referred to collectively as the “Trustee”)
pursuant to Section 13.04 in respect of the Securities of any Defeasible Series
shall be held in trust and applied by the Trustee, in accordance with the
provisions of the Securities of such series and this Indenture, to the payment,
either directly or through any such Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Holders of
Securities of such series, of all sums due and to become due thereon in respect
of principal and any premium and interest, but money so held in trust need not
be segregated from other funds except to the extent required by
law.
The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to
63
Section
13.04 or the principal and interest received in respect thereof other than any
such tax, fee or other charge that by law is for the account of the Holders of
Outstanding Securities.
Anything
in this Article XIII to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 13.04 with respect to
Securities of any Defeasible Series that, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Defeasance or Covenant Defeasance with respect to the Securities of such
series.
Section
13.06 Reinstatement.
If the
Trustee or the Paying Agent is unable to apply any money in accordance with
this Article XIII with respect to the Securities of any series by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company’s obligations
under this Indenture and the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article XIII
with respect to Securities of such series until such time as the Trustee or
Paying Agent is permitted to apply all money held in trust pursuant to Section
13.05 with respect to Securities of such series in accordance with this Article
XIII; provided,
however, that
if the Company makes any payment of principal of or any premium or interest on
any Security of such series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of Securities of such
series to receive such payment from the money so held in trust.
ARTICLE
XIV
CONVERSION
OF SECURITIES
Section
14.01 Applicability;
Conversion Privilege and Conversion Price.
Securities
of any series which are convertible into Common Shares of the Company shall be
convertible in accordance with their terms and (except as otherwise specified
as contemplated by Section 3.01 for Securities of any series) in accordance
with this Article.
Subject
to and upon compliance with the provisions of this Article, at the option of
the Holder thereof, any Security or any portion of the outstanding principal
amount thereof which is $1,000 or an integral multiple of $1,000 may be
converted at the principal amount thereof, or of such portion thereof, into
fully paid and nonassessable Common Shares (calculated as to each conversion to
the nearest 1/100 of a share) of the Company at the conversion price,
determined as hereinafter provided, in effect at the time of conversion. Such
conversion right shall expire at the close of business on the date specified
for Securities of such series. In case a Security or portion thereof is called
for redemption at the election of the Company, such conversion right in respect
of the Security or portion so called shall expire at the close of business on
the 10th calendar day before the Redemption Date, unless the Company defaults
in making the payment due upon redemption.
64
The
price at which Common Shares shall be delivered upon conversion (herein called
the “conversion price”) shall be the price specified in relation to
Securities of such series pursuant to Section 3.01, as it shall be adjusted in
certain instances as provided in this Article.
Section
14.02 Exercise
of Conversion Privilege.
In order
to exercise the conversion privilege, the Holder of any Security to be
converted shall surrender such Security, duly endorsed or assigned to the
Company or in blank, at any office or agency of the Company maintained for that
purpose pursuant to Section 10.02, accompanied by written notice to the Company
(which shall be substantially in the form set forth in Section 2.03) at such
office or agency that the Holder elects to convert such Security or, if less
than the entire principal amount thereof is to be converted, the portion
thereof to be converted. Securities surrendered for conversion during the
period from the close of business on any Regular Record Date next preceding any
Interest Payment Date to the opening of business on such Interest Payment Date
shall (except in the case of Securities or portions thereof which have been
called for redemption on a Redemption Date within such period) be accompanied
by payment in funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of
Securities being surrendered for conversion. Subject to the provisions of
Section 3.07 relating to the payment of Defaulted Interest by the Company, the
interest payment with respect to a Security called for redemption on a
Redemption Date during the period from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date shall be payable on such Interest Payment Date to
the Holder of such Security at the close of business on such Regular Record
Date notwithstanding the conversion of such Security after such Regular Record
Date and prior to such Interest Payment Date, and the Holder converting such
Security need not include a payment of such interest payment amount upon
surrender of such Security for conversion. Except as provided in the preceding
sentence and subject to the final paragraph of Section 3.07, no payment or
adjustment shall be made upon any conversion on account of any interest accrued
on the Securities surrendered for conversion or on account of any dividends on
the Common Shares issued upon conversion.
Securities
shall be deemed to have been converted immediately prior to the close of
business on the day of surrender of such Securities for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Shares issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Shares at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full Common Shares issuable upon conversion,
together with payment in lieu of any fraction of a share, as provided in
Section 14.03.
In the
case of any Security which is converted in part only, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Security or Securities of
authorized denominations in aggregate principal amount equal to the unconverted
portion of the principal amount of such Security.
65
Section
14.03 Fractions
of Shares.
No
fractional Common Shares shall be issued upon conversion of Securities. If more
than one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities (or specified portions thereof) so surrendered. Instead of any
fractional Common Share which would otherwise be issuable upon conversion of
any Security or Securities (or specified portions thereof), the Company shall
pay a cash adjustment in respect of such fraction in an amount equal to the
same fraction of the daily closing price per Common Share (consistent with
Section 14.04(6) below) at the close of business on the day of
conversion.
Section
14.04 Adjustment
of Conversion Price.
(1) In case
the Company shall pay or make a dividend or other distribution on any class of
capital stock of the Company in Common Shares, the conversion price in effect
at the opening of business on the day following the date fixed for
determination of shareholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of Common Shares
outstanding at the close of business on the date fixed for such determination
and the denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution, such
reduction to become effective immediately after the opening of business on the
day following the date fixed for such determination. For the purposes of this
paragraph (1), the number of Common Shares at any time outstanding shall not
include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of Common
Shares. The Company will not pay any dividend or make any distribution on
Common Shares held in the treasury of the Company.
(2) In case
the Company shall issue rights or warrants to all holders of its Common Shares
entitling them to subscribe for or purchase Common Shares at a price per share
less than the current market price per Common Share (determined as provided in
paragraph (6) of this Section) on the date fixed for the determination of
shareholders entitled to receive such rights or warrants (other than pursuant
to a dividend reinvestment plan), the conversion price in effect at the opening
of business on the day following the date fixed for such determination shall be
reduced by multiplying such conversion price by a fraction of which the
numerator shall be the number of Common Shares outstanding at the close of
business on the date fixed for such determination plus the number of Common
Shares which the aggregate of the offering price of the total number of Common
Shares so offered for subscription or purchase would purchase at such current
market price and the denominator shall be the number of Common Shares
outstanding at the close of business on the date fixed for such determination
plus the number of Common Shares so offered for subscription or purchase, such
reduction to become effective immediately after the opening of business on the
day following the date fixed for such determination. For the purposes of this
paragraph (2), the number of Common Shares at any time outstanding shall not
include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of
66
fractions
of Common Shares. The Company will not issue any rights or warrants in respect
of Common Shares held in the treasury of the Company.
(3) In case
outstanding Common Shares shall be subdivided into a greater number of Common
Shares, the conversion price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be
proportionately reduced, and, conversely, in case outstanding Common Shares
shall each be combined into a smaller number of Common Shares, the conversion
price in effect at the opening of business on the day following the day upon
which such combination becomes effective shall be proportionately increased,
such reduction or increase, as the case may be, to become effective immediately
after the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(4) In case
the Company shall, by dividend or otherwise, distribute to all holders of its
Common Shares evidences of its indebtedness or assets (including securities,
but excluding any rights or warrants referred to in paragraph (2) of this
Section, any dividend or distribution paid in cash out of the earned surplus of
the Company and any dividend or distribution referred to in paragraph (1) of
this Section), the conversion price shall be adjusted so that the same shall
equal the price determined by multiplying the conversion price in effect
immediately prior to the close of business on the date fixed for the
determination of shareholders entitled to receive such distribution by a
fraction of which the numerator shall be the current market price per Common
Share (determined as provided in paragraph (6) of this Section) on the date
fixed for such determination less the then fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and described
in a Board Resolution filed with the Trustee) of the portion of the assets or
evidences of indebtedness so distributed applicable to one Common Share and the
denominator shall all be such current market price per Common Share, such
adjustment to become effective immediately prior to the opening of business on
the day following the date fixed for the determination of shareholders entitled
to receive such distribution.
(5) The
reclassification of Common Shares into securities other than Common Shares
(other than any reclassification upon a consolidation or merger to which
Section 14.11 applies) shall be deemed to involve (a) a distribution of such
securities other than Common Shares to all holders of Common Shares (and the
effective date of such reclassification shall be deemed to be “the date
fixed for the determination of shareholders entitled to receive such
distribution” and the “date fixed for such determination” within
the meaning of paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of Common Shares outstanding
immediately prior to such reclassification into the number of Common Shares
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be “the day upon which such
subdivision becomes effective” or “the day upon which such
combination becomes effective”, as the case may be, such “the day
upon which such subdivision or combination becomes effective” within the
meaning of paragraph (3) of this Section).
67
(6) For the
purpose of any computation under paragraphs (2) and (4) of this Section, the
current market price per Common Share on any day shall be deemed to be the
average of the daily closing prices for the five consecutive trading days
(i.e.,
Business Days on which the Common Shares are traded) selected by the Board of
Directors commencing not more than 20 trading days before, and ending not later
than, the earlier of the day in question and the day before the “ex”
date with respect to the issuance or distribution requiring such computation.
For this purpose, the term “‘ex’ date”, when used with
respect to any issuance or distribution, shall mean the first date on which the
Common Shares trade regular way on the applicable exchange or in the applicable
market without the right to receive such issuance or distribution. The closing
price for each day shall be the reported last sale price regular way or, in
case no such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in either case on the New York Stock
Exchange or, if the Common Shares are not listed or admitted to trading on such
Exchange, on the principal national securities exchange on which the Common
Shares are listed or admitted to trading or, if not listed or admitted to
trading on any national securities exchange, on the Nasdaq Stock Market or, if
the Common Shares are not listed or admitted to trading on any national
securities exchange or quoted on the Nasdaq Stock Market, the average of the
closing bid and asked prices in the over-the-counter market as furnished by any
New York Stock Exchange member firm selected from time to time by the Board of
Directors for that purpose.
(7) The
Company may make such reductions in the conversion price, in addition to those
required by paragraphs (1), (2), (3) and (4) of this Section, as it considers
to be advisable in order to avoid or diminish any income tax to any holders of
Common Shares resulting from any dividend or distribution of stock or issuance
of rights or warrants to purchase or subscribe for stock or from any event
treated as such for income tax purposes or for any other reasons. The Company
shall have the power to resolve any ambiguity or correct any error in this
paragraph (7) and its actions in so doing shall be final and
conclusive.
(8) No
adjustment in the conversion price shall be required unless such adjustment
would require an increase or decrease of at least one percent in such
conversion price; provided,
however, that
any adjustments which by reason of this paragraph (8) is not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Article shall be made to the nearest
cent or to the nearest 1/100 of a share, as the case may be.
Section
14.05 Notice
of Adjustments of Conversion Price.
Whenever
the conversion price is adjusted as herein provided:
|
(a)
|
the
Company shall compute the adjusted conversion price in accordance with Section
14.04 and shall prepare a certificate signed by the Treasurer of the Company
setting forth the adjusted conversion price and showing in reasonable detail
the facts upon which such adjustment is based, and such certificate shall
forthwith be filed at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 10.02; and |
68
|
(b)
|
a notice
stating that the conversion price has been adjusted and setting forth the
adjusted conversion price shall forthwith be required, and as soon as
practicable after it is required, such notice shall be mailed by the Company to
all Holders at their last addresses as they shall appear in the Security
Register. |
Section
14.06 Notice
of Certain Corporate Action.
In
case:
|
(a)
|
the
Company shall declare a dividend (or any other distribution) on its Common
Shares payable otherwise than in cash out of its earned surplus;
or |
|
(b)
|
the
Company shall authorize the granting to the holders of its Common Shares of
rights or warrants to subscribe for or purchase any shares of capital stock of
any class or of any other rights; or |
|
(c)
|
of any
reclassification of the Common Shares of the Company (other than a subdivision
or combination of its outstanding Common Shares), or of any consolidation,
merger or share exchange to which the Company is a party and for which approval
of any shareholders of the Company is required, or of the sale or transfer of
all or substantially all of the assets of the Company; or |
|
(d)
|
of the
voluntary or involuntary dissolution, liquidation or winding up of the
Company; |
then the
Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 10.02, and shall cause
to be mailed to all Holders at their last addresses as they shall appear in the
Security Register, at least 20 days (or 10 days in any case specified in clause
(a) or (b) above) prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights or warrants, or, if a record
is not to be taken, the date as of which the holders of Common Shares of record
to be entitled to such dividend, distribution, rights or warrants are to be
determined, or (y) the date on which such reclassification, consolidation,
merger, share exchange, sale, transfer, dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected that
holders of Common Shares of record shall be entitled to exchange their Common
Shares for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, transfer,
dissolution, liquidation or winding up. Neither the failure to give such notice
nor any defect therein shall affect the legality or validity of the proceedings
described in clauses (a) through (d) of this Section 14.06. If at the time the
Trustee shall not be the conversion agent, a copy of such notice shall also
forthwith be filed by the Company with the Trustee.
Not less
than seven days prior to any date fixed for the determination of shareholders
entitled to receive such distribution, the Company shall cause to
be
69
filed at
each office or agency maintained for the purpose of conversion of Securities
pursuant to Section 10.02, and shall cause to be mailed to all Holders at their
last addresses as they shall appear in the Security Register, a notice stating
the date on which the such determination is to be made, and briefly describing
the import thereof. If at the time the Trustee shall not be the conversion
agent, a copy of such notice shall also forthwith be filed by the Company with
the Trustee.
Section
14.07 Company
to Reserve Common Shares.
The
Company shall at all times reserve and keep available out of its authorized but
unissued Common Shares, for the purpose of effecting the conversion of
Securities, the full number of Common Shares then issuable upon the conversion
of all Outstanding Securities which are convertible into Common
Shares.
Section
14.08 Taxes
on Conversions.
The
Company will pay any and all taxes that may be payable in respect of the issue
or delivery of Common Shares on conversion of Securities pursuant hereto. The
Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue and delivery of Common Shares in
a name other than that of the Holder of the Security or Securities to be
converted, and no such issue or delivery shall be made unless and until the
Person requesting such issue has paid to the Company the amount of any such
tax, or has established to the satisfaction of the Company that such tax has
been paid.
Section
14.09 Covenant
as to Common Shares.
The
Company covenants that all Common Shares which may be issued upon conversion of
Securities will upon issue be fully paid and nonassessable and, except as
provided in Section 14.08, the Company will pay all taxes, liens and charges
with respect to the issue thereof.
Section
14.10 Cancellation
of Converted Securities.
All
Securities delivered for conversion shall be delivered to the Trustee to be
cancelled by or at the direction of the Trustee, which shall dispose of the
same as provided in Section 3.09.
Section
14.11 Provisions
in Case of Consolidation, Merger or Sale of Assets.
In case
of any consolidation of the Company with, or merger of the Company into, any
other Person, any merger of another Person into the Company (other than a
merger which does not result in any reclassification, conversion, exchange or
cancellation of outstanding Common Shares of the Company) or any sale or
transfer of all or substantially all of the assets of the Company, the Person
formed by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each convertible Security
then outstanding shall have the right thereafter, during the period such
Security shall be convertible as specified in Section 14.01, to convert such
Security only into the kind and amount of securities, cash and
other
70
property
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of Common Shares of the Company into which such Security might have been
converted immediately prior to such consolidation, merger, sale or transfer,
assuming such holder of Common Shares of the Company failed to exercise his
rights of election, if any, as to the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer
(provided that if the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer is not the same
for each Common Share of the Company in respect of which such rights of
election shall not have been exercised (“non-electing share”), then
for the purpose of this Section the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer by
each non-electing share shall be deemed to be the kind and amount so receivable
per share by a plurality of the non-electing shares). Such supplemental
indenture shall provide for adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article. The above
provisions of this Section shall similarly apply to successive consolidations,
mergers, sales or transfers.
Section
14.12 Responsibility
of Trustee.
Neither
the Trustee nor any conversion agent shall at any time be under any duty or
responsibility to any Holder of Securities to determine whether any fact exists
which may require any adjustment of the conversion price, or with respect to
the nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any conversion agent
shall be accountable with respect to the registration, validity or value (or
the kind or amount) of any Common Shares, or of any securities or property,
which may at any time be issued or delivered upon the conversion of any
Security; and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any conversion
agent shall be responsible for any failure of the Company to issue or transfer
or deliver any Common Shares or share certificates or other securities or
property or to make any cash payment upon the surrender of any Security for the
purpose of conversion or to comply with any of the covenants of the Company
contained in this Article XIV.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
(Signature
Page to Follow)
71
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
| PRIMUS GUARANTY, LTD. | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxx | |
|
Name: Xxxxxxx Xxxxxxx |
||
| Title: Chief Financial Officer | ||
| DEUTSCHE BANK TRUST COMPANY AMERICAS | |||
| |
|
|
|
| By: | /s/ Xxxxx Xxxxxxx | ||
|
Name: Xxxxx Xxxxxxx |
|||
| Title: Vice President | |||
| By: | /s/ Xxxxxxx Xxxxxxxxxx | ||
|
Name: Xxxxxxx Xxxxxxxxxx |
|||
| Title: Vice President | |||
[Signature
Page to Senior Indenture]
