EXHIBIT 4.1
INDENTURE
between
METRIS COMPANIES INC.
and
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
DATED AS OF OCTOBER 25, 2002
Providing for the Issuance of Subordinated Debt Securities in series
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
310(a)(1)......................................................................................................6.10
(a)(2).........................................................................................................6.10
(a)(3).........................................................................................................6.10
(a)(4).........................................................................................................6.10
(a)(5).........................................................................................................6.10
(b)......................................................................................................6.08; 6.10
(c) .........................................................................................................**N.A.
311(a).........................................................................................................6.11
(b)............................................................................................................6.11
(c)............................................................................................................N.A.
312(a).........................................................................................................6.13
(b)............................................................................................................N.A.
(c)............................................................................................................N.A.
313(a).........................................................................................................6.06
(b)(1).........................................................................................................6.06
(b)(2).........................................................................................................6.06
(c)............................................................................................................6.06
(d)............................................................................................................6.06
314(a)...................................................................................................9.05, 9.06
(b)............................................................................................................N.A.
(c)(1).........................................................................................................1.02
(c)(2).........................................................................................................1.02
(c)(3).........................................................................................................N.A.
(d)............................................................................................................N.A.
(e)............................................................................................................1.02
(f)............................................................................................................N.A.
315(a)......................................................................................................6.01(b)
(b)............................................................................................................6.05
(c).........................................................................................................6.01(a)
(d).........................................................................................................6.01(c)
(e)............................................................................................................5.15
316(a)(1)(A)...................................................................................................5.08
(a)(1)(B)......................................................................................................5.07
(a)(2).........................................................................................................N.A.
(b)............................................................................................................5.10
(c)............................................................................................................N.A.
317(a)(1)......................................................................................................5.03
(a)(2).........................................................................................................5.04
(b)............................................................................................................9.03
318(a).........................................................................................................1.11
----------
* This Cross Reference Table is not part of the
Indenture
** N.A. means not applicable
N.A. means not applicable.
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the
Indenture.
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions and Other Provisions of General Application
Section 1.01. Definitions.............................................................................. 1
Section 1.02. Compliance Certificate and Opinions...................................................... 9
Section 1.03. Forms of Documents Delivered to Trustee.................................................. 9
Section 1.04. Acts of Holders.......................................................................... 10
Section 1.05. Notices, etc., to Trustee and Company.................................................... 11
Section 1.06. Notice to Holders; Waiver................................................................ 11
Section 1.07. Headings and Table of Contents........................................................... 12
Section 1.08. Successors and Assigns................................................................... 12
Section 1.09. Separability............................................................................. 12
Section 1.10. Benefits of
Indenture.................................................................... 12
Section 1.11. Governing Law............................................................................ 13
Section 1.12. Legal Holidays........................................................................... 13
ARTICLE II
Security Forms
Section 2.01. Forms Generally.......................................................................... 13
Section 2.02. Form of Trustee's Certificate of Authentication.......................................... 14
Section 2.03. Securities in Global Form................................................................ 14
Section 2.04. Form of Legend for Securities in Global Form............................................ 14
ARTICLE III
The Securities
Section 3.01. Amount Unlimited; Issuable in Series..................................................... 15
Section 3.02. Denominations............................................................................ 18
Section 3.03. Execution, Authentication, Delivery and Dating........................................... 18
Section 3.04. Temporary Securities..................................................................... 20
Section 3.05. Registration, Transfers and Exchange...................................................... 21
Section 3.06. Replacement Securities................................................................... 24
Section 3.07. Payment of Interest; Interest Rights Preserved........................................... 25
Section 3.08. Persons Deemed Owners.................................................................... 26
Section 3.09. Cancellation............................................................................. 27
Section 3.10. Computation of Interest.................................................................. 27
Section 3.11. CUSIP Numbers............................................................................ 27
Section 3.12. Currency and Manner of Payment in Respect of Securities.................................. 27
Section 3.13. Appointment and Resignation of Exchange Rate Agent....................................... 30
i
ARTICLE IV
Satisfaction, Discharge and Defeasance
Section 4.01. Termination of Company's Obligations Under the
Indenture.................................. 31
Section 4.02. Application of Trust Funds................................................................ 32
Section 4.03. Applicability of Defeasance Provisions; Company's Option to Effect Defeasance or
Covenant Defeasance....................................................................... 32
Section 4.04. Defeasance and Discharge.................................................................. 32
Section 4.05. Covenant Defeasance....................................................................... 33
Section 4.06. Conditions to Defeasance or Covenant Defeasance........................................... 33
Section 4.07. Deposited Money and Government Obligations to be Held in Trust............................ 35
Section 4.08. Repayment to Company...................................................................... 35
Section 4.09. Indemnity for Government Obligations...................................................... 35
Section 4.10. Reinstatement............................................................................. 35
ARTICLE V
Defaults and Remedies
Section 5.01. Events of Default......................................................................... 36
Section 5.02. Acceleration; Rescission and Annulment.................................................... 37
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee........................... 38
Section 5.04. Trustee May File Proofs of Claim.......................................................... 39
Section 5.05. Trustee May Enforce Claims Without Possession of Securities............................... 39
Section 5.06. Delay or Omission not Waiver.............................................................. 39
Section 5.07. Waiver of Past Defaults................................................................... 39
Section 5.08. Control by Majority....................................................................... 39
Section 5.09. Limitation on Suits by Holders............................................................ 40
Section 5.10. Rights of Holders to Receive Payment...................................................... 40
Section 5.11. Application of Money Collected............................................................ 41
Section 5.12. Restoration of Rights and Remedies........................................................ 41
Section 5.13. Rights and Remedies Cumulative............................................................ 41
Section 5.14. Waiver of Usury, Stay or Extension Laws................................................... 41
Section 5.15. Undertaking for Costs..................................................................... 41
Section 5.16. Judgment Currency......................................................................... 42
ARTICLE VI
The Trustees
Section 6.01. Duties of Trustee......................................................................... 42
Section 6.02. Rights of Trustee......................................................................... 43
Section 6.03. Individual Rights of Trustee.............................................................. 44
Section 6.04. Trustee's Disclaimer...................................................................... 44
Section 6.05. Notice of Defaults........................................................................ 44
Section 6.06. Reports by Trustee to Holders............................................................. 45
Section 6.07. Compensation and Indemnity................................................................ 45
Section 6.08. Replacement of Trustee.................................................................... 46
Section 6.09. Successor Trustee by Merger, etc.......................................................... 47
Section 6.10. Eligibility; Disqualification............................................................. 47
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Section 6.11. Preferential Collection of Claims Against the Company..................................... 47
Section 6.12. Trustee's Application for Instructions from the Company................................... 47
Section 6.13. Securityholder Lists...................................................................... 48
Section 6.14. Appointment of Authenticating Agent....................................................... 48
ARTICLE VII
Consolidation, Merger or Sale by the Company
Section 7.01. Consolidation, Merger or Sale of Assets Permitted......................................... 49
ARTICLE VIII
SUPPLEMENTAL
INDENTURES
Section 8.01. Supplemental
Indentures Without Consent of Holders........................................ 50
Section 8.02. Supplemental
Indentures with Consent of Holders........................................... 51
Section 8.03. Compliance With Trust Indenture Act....................................................... 52
Section 8.04. Execution of Supplemental Indentures...................................................... 52
Section 8.05. Effect of Supplemental Indentures......................................................... 52
Section 8.06. Reference in Securities to Supplemental Indentures........................................ 52
Section 8.07. Effect on Senior Indebtedness............................................................. 52
ARTICLE IX
Covenants
Section 9.01. Payment of Principal, Premium, if any, and Interest....................................... 52
Section 9.02. Maintenance of Office or Agency........................................................... 53
Section 9.03. Money for Securities Payments to be Held in Trust; Unclaimed Money........................ 54
Section 9.04. Corporate Existence....................................................................... 55
Section 9.05. Reports by the Company.................................................................... 55
Section 9.06. Annual Review Certificate; Notice of Defaults or Events of Default........................ 55
Section 9.07. Books of Record and Account............................................................... 55
ARTICLE X
Redemption
Section 10.01. Applicability of Article................................................................. 56
Section 10.02. Election to Redeem Notice to Trustee..................................................... 56
Section 10.03. Selection of Securities to be Redeemed................................................... 56
Section 10.04. Notice of Redemption..................................................................... 57
Section 10.05. Deposit of Redemption Price.............................................................. 57
Section 10.06. Securities Payable on Redemption Date.................................................... 58
Section 10.07. Securities Redeemed in Part.............................................................. 58
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ARTICLE XI
Sinking Funds
Section 11.01. Applicability of Article................................................................. 59
Section 11.02. Satisfaction of Sinking Fund Payments with Securities.................................... 59
Section 11.03. Redemption of Securities for Sinking Fund................................................ 59
ARTICLE XII
Subordination of Securities
Section 12.01. Agreement to Subordinate................................................................. 59
Section 12.02. Distribution on Dissolution, Liquidation and Reorganization.............................. 60
Section 12.03. Prior Payment to Senior Indebtedness Upon Acceleration of Securities..................... 61
Section 12.04. No Payment on Securities in Event of Default on Senior Indebtedness...................... 61
Section 12.05. Payments on Securities Permitted......................................................... 62
Section 12.06. Subrogation to Rights of Holders of Senior Indebtedness.................................. 62
Section 12.07. Provisions Solely to Define Relative Rights.............................................. 62
Section 12.08. Authorization of Holders of Securities to Trustee to Effect Subordination................ 62
Section 12.09. Notices to Trustee....................................................................... 63
Section 12.10. Trustee as Holder of Senior Indebtedness................................................. 63
Section 12.11. No Waiver of Subordination Provisions.................................................... 63
Section 12.12. Reliance on Judicial Order or Certificate of Liquidating Agent........................... 64
Section 12.13. Trustee not Fiduciary for Holders of Senior Indebtedness................................. 64
Section 12.14. Article Applicable to Paying Agents...................................................... 64
Section 12.15. Certain Conversions or Exchanges Deemed Payment.......................................... 64
iv
INDENTURE, dated as of October 25, 2002 between
METRIS COMPANIES INC., a
Delaware corporation (the "Company"), and U.S. BANK NATIONAL ASSOCIATION, a
national banking association (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its unsecured subordinated
debentures, notes or other evidences of subordinated indebtedness ("Securities")
to be issued in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually covenanted and agreed as follows for the
equal and ratable benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions. (a) 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 GAAP (as hereinafter defined); and
(4) 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.
"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 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.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent appointed by the Trustee
pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general circulation, in the official
language of the country of publication or in the English language, customarily
published on each
Business Day whether or not published on Saturdays, Sundays or holidays.
Whenever successive publications in an Authorized Newspaper are required
hereunder they may be made (unless otherwise expressly provided herein) on the
same or different days of the week and in the same or different Authorized
Newspapers.
"Bearer Security" means any Security issued hereunder which is payable to
bearer.
"Board" or "Board of Directors" means the Board of Directors of the Company or
any duly authorized committee of the Board of Directors of the Company.
"Board Resolution" means a copy of a resolution of the Board of Directors,
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 the certificate, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section
3.01, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or particular location are
authorized or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time to time
constituted, created under the Securities Exchange Act of 1934, or, if at any
time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the party named as the Company in the first paragraph of this
Indenture until a successor corporation shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter means such successor.
"Company Order" and "Company Request" mean, respectively, a written order or
request signed in the name of the Company by two Officers, one of whom must be
the Chairman of the Board, the President, the Chief Financial Officer, the
Treasurer, the Assistant Treasurer, the Controller or a Vice President of the
Company.
"Conversion Event" means the cessation of use of (i) a Foreign Currency both by
the issuer of such currency and for the settlement of transactions by a central
bank or other public institutions of or within the international banking
community, (ii) the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Communities or (iii) any currency unit other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the office of the Trustee in which at any
particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx,
Xxxxxxxxx 00000, Attention: Corporate Trust Dept.
"Currency Unit" or "currency unit" for all purposes of this Indenture shall mean
any composite currency.
"Debt" means indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage of time, or both,
would be, an Event of Default.
2
"Depository" when used with respect to the Securities of or within any series
issuable or issued in whole or in part in global form, means the Person
designated as Depository by the Company pursuant to Section 3.01 until a
successor Depository shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depository hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States as at the time of payment is
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to time
by the Council of the European Communities.
"European Communities" means the European Economic Community, the EUROPEAN COAL
AND STEEL COMMUNITY AND THE EUROPEAN ATOMIC ENERGY COMMUNITY.
"European Monetary System" means the European Monetary System established by the
Resolution of December 5, 1978 of the Council of the European Communities.
"Exchange Rate Agent", when used with respect to Securities of or within any
series, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.01, a bank designated pursuant to Section 3.01 or Section
3.13 (which may include any such bank acting as Trustee hereunder).
"Exchange Rate Officer's Certificate" means a certificate setting forth (i) the
applicable Market Exchange Rate or the applicable bid quotation and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount in the relevant currency or currency
unit), payable with respect to a Security of any series on the basis of such
Market Exchange Rate or the applicable bid quotation, signed by the Chief
Financial Officer, the Treasurer, the Controller, any Vice President or the
Assistant Treasurer of the Company.
"Foreign Currency" means any currency issued by the government of one or more
countries other than the United States or by any recognized confederation or
association of such governments.
"GAAP" means United States generally accepted accounting principles,
in effect as of the date of this Indenture, as set forth in the statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as is approved by a significant segment of the
accounting profession.
"Government Obligations" means securities which are (i) direct obligations of
the United States or, if specified as contemplated by Section 3.01, the
government which issued the currency in which the Securities of a particular
series are payable, for the payment of which its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States or, if specified as
contemplated by Section 3.01, such government which issued the foreign currency
in which the Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States or such other government, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or a specific payment of interest on or
principal of any such Government
3
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
Government Obligation evidenced by such depository receipt.
"Holder" means, with respect to a Bearer Security, a bearer thereof or of a
coupon appertaining thereto and, with respect to a Registered Security, a person
in whose name a Security is registered on the Register.
"Indenture" means this Indenture as originally executed or as amended or
supplemented from time to time and shall include the forms and terms of
particular series of Securities established as contemplated hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"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.
"Market Exchange Rate" means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, (i) for any conversion involving a currency
unit on the one hand and Dollars or any Foreign Currency on the other, the
exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.01 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in
New York City as certified for customs purposes by the
Federal Reserve Bank of
New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in
New York City, London or any other principal market
for Dollars or such purchased Foreign Currency, in each case determined by the
Exchange Rate Agent. Unless otherwise specified with respect to any Securities
pursuant to Section 3.01, in the event of the unavailability of any of the
exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the
Exchange Rate Agent shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of
New York as of the most
recent available date, or quotations from one or more major banks in
New York
City, London or other principal market for such currency or currency unit in
question (which may include any such bank acting as Trustee under this
Indenture), or such other quotations as the Exchange Rate Agent shall deem
appropriate. If there is more than one market for dealing in any currency or
currency unit by reason of foreign exchange regulations or otherwise, the market
to be used in respect of such currency or currency unit shall be that upon which
a nonresident issuer of securities designated in such currency or currency unit
would purchase such currency or currency unit in order to make payments in
respect of such securities.
"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.
4
"Officer" means the Chairman of the Board, the President, any Vice President,
the Chief Financial Officer, the Treasurer, the Assistant Treasurer, the
Controller, the Secretary or any Assistant Secretary of the Company.
"Officers' Certificate", when used with respect to the Company, means a
certificate signed by two Officers, one of whom must be the Chairman of the
Board, the President, the Chief Financial Officer, the Treasurer, the Assistant
Treasurer, the Controller or a Vice President of the Company.
"Opinion of Counsel" means a written opinion from the general counsel of the
Company or other legal counsel who is reasonably acceptable to the Trustee. Such
counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which provides for an
amount less than the stated principal amount thereof to be due and payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Outstanding", when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the Trustee
for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption money in
the necessary amount and in the required currency or Currency Unit has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust (if the Company shall act
as its own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provisions therefor satisfactory to the Trustee have been made;
(iii) Securities, except to the extent provided in Sections 4.04, with respect
to which the Company has effected defeasance as provided in Article IV; and
(iv) 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 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, or whether
sufficient funds are available for redemption or for any other purpose and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (W) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such Determination, upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.02, (X) the principal
amount of any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined as of the
date such Security is originally issued by the
5
Company as set forth in an Exchange Rate Officer's Certificate delivered to the
Trustee, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent as of such date of original issuance of the
amount determined as provided in clause (W) above) of such Security, (Y) the
principal amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security at
original issuance, unless otherwise provided with respect to such security
pursuant to Section 3.01, and (Z) 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 making such calculation or
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which 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, premium, if any, or interest and any other payments on any Securities on
behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from time to
time the specific terms of which Securities, including, without limitation, the
rate or rates of interest or formula for determining the rate or rates of
interest thereon, if any, the Maturity thereof and the redemption provisions, if
any, with respect thereto, are to the determined by the Company upon the
issuance of such Securities.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or within any
series, means the place or places where the principal of, premium, if any, and
interest and any other payments on such Securities are payable as specified as
contemplated by Sections 3.01.
"Predecessor Security" of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Amount", when used with respect to any Security, means the amount of
principal, if any, payable in respect thereof at Maturity; provided, however,
that when used with respect to an Indexed Security in any context other than the
making of payments at Maturity, "principal amount" means the principal face
amount of such Indexed Security at original issuance.
"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, in
whole or in part, means the price at which it is to be redeemed pursuant to this
Indenture.
6
"Registered Security" means any Security issued hereunder and registered as to
principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest Payment Date on
the Securities of or within any series means the date specified for that purpose
as contemplated by Section 3.01.
"Responsible Officer", when used with respect to the Trustee, shall mean the
chairman or any vice chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any senior vice president, any vice
president, any assistant vice president, the secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer, any trust officer, the controller, any assistant controller, or any
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his knowledge of
and familiarity with a particular subject.
"Security" or "Securities" has the meaning stated in the first recital of this
Indenture and more particularly means a Security or Securities of the Company
issued, authenticated and delivered under this Indenture.
"Senior Indebtedness" means the principal of, premium, if any, and unpaid
interest on (i) all indebtedness of the Company, whether outstanding on the date
of this Indenture or thereafter created, incurred or assumed, which is for money
borrowed, or which is evidenced by a note or similar instrument given in
connection with the acquisition of any business, properties or assets, including
securities; (ii) any indebtedness of others of the kinds described in the
preceding clause (i) the payment of which the Company is responsible for or
liable as guarantor or otherwise; and (iii) amendments, renewals, extensions or
refundings of any such indebtedness, unless in any instrument or instruments
evidencing or securing such indebtedness or pursuant to which the same is
outstanding, it is provided that such indebtedness is not senior in right of
payment to, or that such indebtedness is pari passu in right of payment with or
junior to, the Securities.
Senior Indebtedness does not include (a) any indebtedness of the Company to any
of its Subsidiaries, (b) liabilities of the Company incurred in the ordinary
course of its business, or (c) any indebtedness which by its terms is expressly
made pari passu in right of payment with or subordinated to any other
Securities.
"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 on such Security
or on a coupon representing such installment of interest as the fixed date on
which the principal of such Security or such installment of principal or
interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) a corporation more than 50%
of the combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof, (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs
7
thereof, or (iii) any other Person which is otherwise controlled by such Person
or by one or more other Subsidiaries of such Person or by such Person and one or
more other Subsidiaries of such Person.
"Total Assets" means, at any date, the total assets appearing on the most
recently prepared consolidated balance sheet of the Company and its consolidated
Subsidiaries as of the end of a fiscal quarter of the Company, prepared in
accordance with GAAP.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in effect on the
date of this Indenture, except as provided in Section 8.03.
"Trustee" means the party named as such in the first paragraph of this Indenture
until a successor Trustee replaces it pursuant to the applicable provisions of
this Indenture, and thereafter means such successor Trustee and if, at any time,
there is more than one Trustee, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to the Securities of that
series.
"United States" means, unless otherwise specified with respect to the Securities
of any series as contemplated by Section 3.01, the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with respect to the Securities
of any series as contemplated by Section 3.01, a citizen, national or resident
of the United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof, or an estate or trust, the income of which is subject to United States
federal income taxation regardless of its source.
"Voting Stock" of any Person means capital stock of such Person which ordinarily
has voting power for the election of directors (or persons performing similar
functions) of such Person, whether at all times or only so long as no senior
class of securities has such voting power by reason of any contingency.
(b) The following terms shall have the meanings specified in the Sections
referred to opposite such term below:
TERM Section
"Act" 1.04(a)
"Additional Amount" 3.01(17)
"Bankruptcy Law" 5.01
"Component Currency" 3.12(h)
"Conversion Date" 3.12(d)
"Custodian" 5.01
"Defaulted Interest" 3.07(b)
"Election Date" 3.12(h)
"Event of Default" 5.01
"Judgment Date" 5.16
"Notice of Default" 5.01(3)
"Register" 3.05
"Registrar" 3.05
"Substitute Date" 5.16
"Valuation Date" 3.12(c)
8
Section 1.02. Compliance Certificate and Opinions. Upon any application or
request by the Company to the Trustee to take an action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Sections 2.03
and 9.06) shall include:
(a) a statement that each individual signing such certificate or opinion has
read such condition or covenant and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such condition or covenant has been
complied with; and
(d) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Section 1.03. Forms of Documents Delivered to Trustee. In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an Officer of the Company may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations as to such matters are
erroneous.
Any certificate, statement or opinion of an Officer of the Company or of counsel
may be based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant or firm of accountants in the
employ of the Company, unless such Officer or counsel, as the case may be,
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the accounting matters upon which
his certificate, statement or opinion is based are erroneous.
9
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.
Section 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided 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 conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
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.
(c) The ownership of Bearer Securities may be proved by the production of such
Bearer Securities or by a certificate executed by any trust company, bank,
banker or other depository, wherever situated if such certificate shall be
deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depository, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (i) another such certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced, (ii) such Bearer
Security is produced to the Trustee by some other Person, (iii) such Bearer
Security is surrendered in exchange for a Registered Security or (iv) such
Bearer Security is no longer Outstanding. The ownership of Bearer Securities may
also be proved in any other manner which the Trustee deems sufficient; and the
Trustee may in any instance require further proof with respect to any of the
matters referred to in this Section.
(d) The ownership of Registered Securities shall be proved by the Register.
(e) 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.
(f) If the Company shall solicit from the Holders of any series any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders of such
10
series entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so,
provided that the Company may not set a record date for, and the provisions of
this paragraph shall not apply with respect to, the giving or making of any
notice, declaration, request or direction referred to in the next paragraph. If
such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
(g) The Trustee may set any day as a record date for the purpose of determining
the Holders 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, (iii) any direction referred to in Section 5.08 or (iv) any request to
institute proceedings referred to in Section 5.09(2), and (v) any waiver of past
defaults pursuant to Section 5.07, in each case with respect to Securities of
such series. If such a record date is fixed pursuant to this paragraph, the
relevant action may be taken or given before or after such record date, but only
the Holders of record at the close of business on such record date shall be
deemed to be holders of a series for the purpose of determining whether Holders
of the requisite proportion of Outstanding Securities of such series have
authorized or agreed or consented to such action, and for that purpose the
Outstanding Securities of such series shall be computed as of such record date;
provided that no such action by Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date and the proposed action by Holders to be given to the
Company in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 1.06.
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,
(a) the Trustee by any Holder or by the Company shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) in writing and
mailed, first-class postage prepaid, to the Trustee at its Corporate Trust
Office at 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention:
Corporate Trust Department, or
(b) the Company by the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) in writing and
mailed, first-class postage prepaid, to the Company addressed to it at
Metris
Companies Inc., 00000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000, Attention:
General Counsel, 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 an event (i) if any of the Securities affected by such
event are Registered Securities, such
11
notice to the Holders thereof shall be sufficiently given unless otherwise
herein expressly provided) if in writing and mailed first-class postage prepaid
to each such Holder affected by such event, at his address as it appears in the
Register within the time prescribed for the giving of such notice and, (ii) if
any of the Securities affected by such event are Bearer Securities, notice to
the Holders thereof shall be sufficiently given (unless otherwise herein or in
the terms of such Bearer Securities expressly provided) if published once in an
Authorized Newspaper in
New York,
New York, and in such other city or cities, if
any, as may be specified as contemplated by Section 3.01.
In any case where notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Registered Security shall affect the sufficiency
of such notice with respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities given as provided
herein. In any case where notice is given to Holders of Bearer Securities by
publication, neither the failure to publish such notice, nor any defect in any
notice so published, shall affect the sufficiency of such notice with respect to
other Holders of Bearer Securities or the sufficiency of any notice with respect
to any Holders of Registered Securities given as provided herein. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice as provided above, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder with respect to a Holder
of Registered Securities. If it is impossible or, in the opinion of the Trustee,
impracticable to give any notice by publication in the manner herein required,
then such publication in lieu thereof as shall be made with the approval of the
Trustee shall constitute a sufficient publication of such notice with respect to
a Holder of Bearer Securities.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
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 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.
Section 1.07. 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 1.08. 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 1.09. Separability. In case any provision of this Indenture or 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 1.10. Benefits of Indenture. Nothing in this Indenture or in the
Securities, expressed 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.
12
Section 1.11. Governing Law. This Indenture, the Securities and any coupons
appertaining thereto shall be governed by and construed in accordance with the
laws of the State of
New York without regard to principles of conflicts of laws.
This Indenture is subject to the Trust Indenture Act and if any provision hereof
limits, qualifies or conflicts with any provision of the Trust Indenture Act,
which is required under such Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act which 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. Whether or not this Indenture is
required to be qualified under the Trust Indenture Act, the provisions of the
Trust Indenture Act required to be included in an indenture in order for such
indenture to be so qualified shall be deemed to be included in this Indenture
with the same effect as if such provisions were set forth herein and any
provisions hereof which may not be included in an indenture which is so
qualified shall be deemed to be deleted or modified to the extent such
provisions would be required to be deleted or modified in an indenture so
qualified.
Section 1.12. Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Security or
coupon other than a provision in the Securities of an series which specifically
states that such provision shall apply in lieu of this Section) payment of
principal, premium, if any, or interest 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 such date;
provided that to the extent such payment is made on such next succeeding
Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
ARTICLE II
SECURITY FORMS
Section 2.01. Forms Generally. The Securities of each series and the coupons, if
any, to be attached thereto shall be in substantially such form as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or Depository therefor or as may,
consistently herewith, be determined by the officers executing such Securities
and coupons, if any, as evidenced by their execution of the Securities and
coupons, if any. If temporary Securities of any series are issued as permitted
by Section 3.04, the form thereof also shall be established as provided in the
preceding sentence. If the forms of Securities and coupons, if any, of any
series are established by, or by action taken pursuant to, a Board Resolution, a
copy of the Board Resolution together with an appropriate record of any such
action taken pursuant thereto, including a copy of the approved form of
Securities or coupons, if any, 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.
Unless otherwise specified as contemplated by Section 3.01, Bearer Securities
shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed, lithographed or
engraved on steel engraved boarders or may be produced in any other manner, all
as determined by the officers
13
executing such Securities and coupons, if any, as evidenced by their execution
of such Securities and coupons, if any.
Section 2.02 Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series described in the within- mentioned
Indenture.
____________________________, as Trustee
By: ______________________________ Authorized Signatory
Section 2.03. Securities in Global Form. If Securities of or within a series are
issuable in whole or in part in global form, any such Security of such series
may provide that it shall represent the aggregate or specified amount of
Outstanding Securities of such series from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Securities of such series
represented thereby may from time to time be reduced or increased to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, or changes in the rights of Holders,
of Outstanding Securities represented thereby, shall be made in such manner and
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 3.03 or 3.04. Subject to the
provisions of Section 3.03 and, if applicable, Section 3.04, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 1.02 hereof and need not be accompanied
by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.03 shall apply to any Security
in global form if such Security was never issued and sold by the Company and the
Company delivers to the Trustee the Security in global form together with
written instructions (which need not comply with Section 1.02 and need not be
accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last paragraph of Section 3.03.
Notwithstanding the provisions of Section 2.01 and 3.07, unless otherwise
specified as contemplated by Section 3.01, payment of principal of, premium, if
any, and interest on any Security in permanent global form shall be made to the
Person or Persons specified therein.
Section 2.04. Form of Legend for Securities in Global Form. Any Registered
Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form with such changes as may be required
by the Depository:
THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN CERTIFICATED FORM
14
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, THIS SECURITY MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
ARTICLE III
THE SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established with respect to each series of
Securities issued hereunder (i) by a Board Resolution, (ii) by action taken
pursuant to a Board Resolution and (subject to Section 3.03) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall distinguish the
Securities of the series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (which
limit shall not pertain to 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, 8.06, or 10.07);
(3) the date or dates on which the principal of and premium, if any, on the
Securities of the series is payable or the method of determination thereof;
(4) the rate or rates at which the Securities of the series shall bear interest,
if any, or the method of calculating such rate or rates of interest, the date or
dates from which such interest shall accrue or the method by which such date or
dates shall be determined, the Interest Payment Dates on which any such interest
shall be payable and, with respect to Registered Securities, the Regular Record
Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date;
(5) the place or places where the principal of, premium, if any, and interest,
if any, on Securities of the series shall be payable;
(6) the period or periods within which, the price or prices at which, the
currency or currencies (including currency unit or units) in which, and the
other terms and conditions upon which, Securities of the series may be redeemed,
in whole or in part, at the option of the Company and, if other than as provided
in Section 10.03, the manner in which the particular Securities of such series
(if less than all Securities of such series are to be redeemed) are to be
selected for redemption;
15
(7) the obligation, if any, of the Company to redeem or purchase Securities of
the series pursuant to any sinking fund or analogous provisions or upon the
happening of a specified event or at the option of a Holder thereof and the
period or periods within which, the price or prices at which, and the other
terms and conditions upon which, Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple thereof, if
Registered Securities, and if other than the denomination of $5,000 and any
integral multiple thereof, if Bearer Securities, the denominations in which
Securities of the series shall be issuable;
(9) if other than Dollars, the currency or currencies (including currency unit
or units) in which the principal of, premium, if any, and interest, if any, on
the Securities of the series shall be payable, or in which the Securities of the
series shall be denominated, and the particular provisions applicable thereto in
accordance with, in addition to, or in lieu of the provisions of Section 3.12;
(10) if the payments of principal of, premium, if any, or interest, if any, on
the Securities of the series are to be made, at the election of the Company or a
Holder, in a currency or currencies (including currency unit or units) other
than that in which such Securities are denominated or designated to be payable,
the currency or currencies (including currency unit or units) in which such
payments are to be made, the terms and conditions of such payments and the
manner in which the exchange rate with respect to such payments shall be
determined, and the particular provisions applicable thereto in accordance with,
in addition to, or in lieu of the provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if any, and interest,
if any, on the Securities of the series shall be determined with reference to an
index, formula or other method (which index, formula or method may be based,
without limitation, on a currency or currencies (including currency unit or
units) other than that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by which such
amounts shall be determined;
(12) if other than the principal amount thereof, the portion of the principal
amount of such Securities of the series which shall be payable upon declaration
of acceleration thereof pursuant to Section 5.02 or the method by which such
portion shall be determined;
(13) if the principal amount payable at the Stated Maturity of any Securities of
the series will not be determinable as of any one or more dates prior to the
Stated Maturity, the amount which shall be deemed to be the principal amount of
such Securities as of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which shall be due and payable upon any
Maturity other than the Stated Maturity or which shall be deemed to be
Outstanding as of any date prior to the Stated Maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount shall be
determined);
(14) if other than as provided in Section 3.07, the Person to whom any interest
on any Registered Security of the series shall be payable and the manner in
which, or the Person to whom, any interest on any Bearer Securities of the
series shall be payable;
(15) provisions, if any, granting special rights to the Holders of Securities of
the series upon the occurrence of such events as may be specified;
16
(16) any deletions from, modifications of or additions to the Events of Default
set forth in Section 5.01 or covenants of the Company set forth in Article IX
pertaining to the Securities of the series;
(17) under what circumstances, if any, the Company will pay additional amounts
on the Securities of that series held by a Person who is not a U.S. Person in
respect of taxes or similar charges withheld or deducted ("Additional Amounts")
and, if so, whether the Company will have the option to redeem such Securities
rather than pay such additional amounts (and the terms of any such option);
(18) the terms of any right to convert or exchange Securities of the series,
either at the option of the holder thereof or the Company, into or for other
securities or property, including, without limitation, the period or periods
within which and the price or prices at which any Securities of the series shall
be converted or exchanged, in whole or in part;
(19) whether Securities of the series shall be issuable as Registered Securities
or Bearer Securities (with or without interest coupons), or both, and any
restrictions applicable to the offering, sale or delivery of Bearer Securities
and, if other than as provided in Section 3.05, the terms upon which Bearer
Securities of a series may be exchanged for Registered Securities of the same
series and vice versa;
(20) the date as of which any Bearer Securities of the series and any temporary
global Security representing Outstanding Securities of the series shall be dated
if other than the date of original issuance of the first Security of the series
to be issued;
(21) the forms of the Securities and coupons, if any, of the series;
(22) the applicability, if any, to the Securities of or within the series of
Sections 4.04 and 4.05, or such other means of defeasance or covenant defeasance
as may be specified for the Securities and coupons, if any, of such series, and,
if the Securities are payable in a currency other than Dollars, whether, for the
purpose of such defeasance or covenant defeasance the term "Government
Obligations" shall include obligations referred to in the definition of such
term which are not obligations of the United States or an agency or
instrumentality of the United States;
(23) if other than the Trustee, the identity of the Registrar and any Paying
Agent;
(24) the designation of the initial Exchange Rate Agent, if any;
(25) if the Securities of the series shall be issued in whole or in part in
global form (i) the Depository for such global Securities, (ii) the form of any
legend in addition to or in lieu of that in Section 2.04 which shall be borne by
such global Security, (iii) whether beneficial owners of interests in any
Securities of the series in global form may exchange such interests for
certificated Securities of such series and of like tenor of any authorized form
and nomination, and (iv) if other than as provided in Section 3.05, the
circumstances under which any such exchange may occur;
(26) any addition to, deletion from or change in Article XII with respect to
Securities of the Series; and
(27) any other terms of the series (which terms shall not be inconsistent with
the provisions of this Indenture) including any terms which may be required by
or advisable under United States laws or regulations or advisable (as determined
by the Company) in connection with the marketing of Securities of the series.
17
(c) All Securities of any one series and coupons, if any, appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided (i) by a Board Resolution, (ii) by action taken pursuant to a Board
Resolution and (subject to Section 3.03) set forth or determined in the manner
provided, in the related Officers' Certificate or (iii) in an indenture
supplemental hereto. All Securities of any one series need not be issued at the
same time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities of such series.
(d) If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of such Board Resolution
shall be certified by the Corporate 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, or providing the manner for determining,
the terms of the Securities of such series, and an appropriate record of any
action taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
(e) The Securities shall be subordinated and subject in right of payment to
Senior Indebtedness as provided in Article XII.
Section 3.02. Denominations. Unless otherwise provided as contemplated by
Section 3.01, any Registered Securities of a series shall be issuable in
denominations of $1,000 and any integral multiple thereof and any Bearer
Securities of a series shall be issuable in the denomination of $5,000 and any
integral multiples thereof.
Section 3.03. Execution, Authentication, Delivery and Dating. Securities shall
be executed on behalf of the Company by two Officers. The Company's seal shall
be reproduced on the Securities. The signatures of any of these officers on the
Securities may be manual or facsimile. The coupons, if any, of Bearer Securities
shall bear the facsimile signature of two Officers.
Securities and coupons bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time, the Company may deliver Securities, together
with any coupons appertaining thereto, 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; provided,
however, that in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time in
accordance with such other procedures (including without limitation, the receipt
by the Trustee of oral or electronic instructions from the Company or its duly
authorized agents, promptly confirmed in writing) acceptable to the Trustee as
may be specified by or pursuant to a Company Order delivered to the Trustee
prior to the time of the first authentication of Securities of such series.
If the form or terms of the Securities of a series have been established by 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 315(a) through (d)
of the Trust Indenture Act) shall be fully protected in relying upon, an Opinion
of Counsel stating,
18
(1) if the forms of such Securities and any coupons have been established by or
pursuant to a Board Resolution as permitted by Section 2.01, that such forms
have been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been established by or
pursuant to a Board Resolution as permitted by Section 3.01, that such terms
have been, or in the case of Securities of a series offered in a Periodic
Offering, will be, established in conformity with the provisions of this
Indenture, subject in the case of Securities offered in a Periodic Offering, to
any conditions specified in such Opinion of Counsel; and
(3) that such Securities together with any coupons appertaining thereto, 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 other similar laws of general
applicability relating to or affecting the enforcement of creditors' rights and
to general equity principles and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any Securities
denominated other than in Dollars (or a Foreign Currency or currency unit
judgment in respect of such claim) be converted into Dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or (B)
governmental authority to limit, delay or prohibit the making of payments in
Foreign Currencies or currency units or payments outside the United States.
Notwithstanding that such form or terms have been so established, the Trustee
shall have the right to decline to authenticate such Securities if, in the
written opinion of counsel to the Trustee (which counsel may be an employee of
the Trustee) reasonably acceptable to the Company, the issue of such Securities
pursuant to this Indenture will adversely affect the Trustee's own rights,
duties or immunities under this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee. Notwithstanding the generality of the
foregoing, the Trustee will not be required to authenticate Securities
denominated in a Foreign Currency if the Trustee reasonably believes that it
would be unable to perform its duties with respect to such Securities.
Notwithstanding the provisions of Section 3.01 and of the two preceding
paragraphs, if all of the Securities of any series are not to be 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 the two preceding paragraphs in connection with
the authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
With respect to Securities of a series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Company of any of such
securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.01 and 3.01 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.01 that the Securities of a
series are to be issued in whole or in part in global form, then the Company
shall execute and the Trustee shall, in accordance with this Section and the
Company Order with respect to such series, authenticate and deliver one or more
Securities of such series in global form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be
19
represented by such Security or Securities in global form, (ii) shall be
registered, if a Registered Security, in the name of the Depository for such
Security or Securities in global form or the nominee of such Depository, (iii)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instruction and (iv) shall bear the legends set forth in Section
2.04 and the terms of the Board Resolution or supplemental indenture relating to
such series.
Each Depository designated pursuant to Section 3.01 for a Registered Security in
global form must, at the time of its designation and at all times while it
serves as Depository, be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and any other applicable statute or
regulation. The Trustee shall have no responsibility to determine if the
Depository is so registered. Each Depository shall enter into an agreement with
the Trustee and the Company governing the respective duties and rights of such
Depository, the Company and the Trustee with regard to Securities issued in
global form.
Each Registered Security shall be dated the date of its authentication and each
Bearer Security shall be dated as of the date specified as contemplated by
Section 3.01.
No Security or coupon appertaining thereto shall be entitled to any benefits
under this Indenture or be valid or obligatory for any purpose until the
certificate of authentication substantially in the form provided herein is
executed by the manual signature of one of the authorized signatories of the
Trustee or an Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such signature upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered under this Indenture and is
entitled to the benefits of this Indenture. Except as permitted by Section 3.06
or 3.07, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
canceled.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 3.09 together with a written statement (which need not comply with
Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall not 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 of such series which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor and form, with or
without coupons, 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
conclusively evidenced by their execution of such Securities and coupons, if
any. In the case of Securities of any series, such temporary Securities may be
in global form, representing all or a portion of the Outstanding Securities of
such series.
Except in the case of temporary Securities in global form, each of which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
of any series are issued, the Company will cause definitive Securities of such
series to be prepared without unreasonable delay. After 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
pursuant to Section 9.02 in a Place of Payment for such
20
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor; provided, however, that no definitive Bearer Security, except as may be
provided pursuant to Section 3.01, shall be delivered in exchange for a
temporary Registered Security; and provided further that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security unless
the Trustee shall have received from the person entitled to receive the
definitive Bearer Security a certificate substantially in the form approved in
or pursuant to the Board Resolutions relating thereto and such delivery shall
occur only outside the United States. 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 except as otherwise
specified as contemplated by Section 3.01.
Section 3.05. Registration, Transfer and Exchange. The Company shall cause to be
kept at the Corporate Trust Office of the Trustee or in any office or agency to
be maintained by the Company in accordance with Section 9.02 in a Place of
Payment a register (the "Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities and the registration of transfers of Registered
Securities. The Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. The Trustee is
hereby appointed "Registrar" for the purpose of registering Registered
Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security of any
series at the office or agency maintained pursuant to Section 9.02 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 Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount containing
identical terms and provisions.
Bearer Securities or any coupons appertaining thereto shall be transferable by
delivery.
At the option of the Holder, Registered Securities of any series (except a
Registered Security in global form) may be exchanged for other Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount containing identical terms and provisions, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified as contemplated by Section 3.01, Bearer Securities may not
be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.01, at the option of the
Holder, Bearer Securities of such series may be exchanged for Registered
Securities (if the Securities of such series are issuable in registered form) or
Bearer Securities (if Bearer Securities of such series are issuable in more than
one denomination and such exchanges are permitted by such series) of the same
series, of any authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Bearer Securities to be exchanged at any
such office or agency, with all unmatured coupons and all matured coupons in
default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured coupon or coupons in
default, such exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company and the Trustee in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent
21
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 9.02,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States.
Notwithstanding the foregoing, in case any Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series after the close of business at such office or agency on (i)
any Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be (or, if such coupon is so surrendered with such
Bearer Security, such coupon shall be returned to the person so surrendering the
Bearer Security), and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon,
when due in accordance with the provisions of this Indenture.
Each Security issued in global form authenticated under this Indenture shall be
registered in the name of the Depository designated for such series or a nominee
thereof and delivered to such Depository or a nominee thereof or custodian
therefor, and each such Security issued in global form shall constitute a single
Security for all purposes of this Indenture.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in certificated form in the
circumstances described below, a Security in global form representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depository for such series to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any such nominee to a successor Depository
for such series or a nominee of such successor Depository.
If at any time the Depository for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depository for the
Securities of such series or defaults in the performance of its duties as
Depository or if at any time the Depository for the Securities of such series
shall no longer be eligible under Section 3.03, the Company shall appoint a
successor Depository with respect to the Securities of such series. If a
successor Depository for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company selection pursuant to Section 3.01(b)(24)
shall no longer be effective with respect to the Securities of such series and
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of certificated Securities of such series of
like tenor, shall authenticate and deliver Securities of such series of like
tenor in certificated form, in authorized denominations and in an aggregate
principal amount equal to the principal amount of the Security or Securities of
such series of like tenor in global form in exchange for such Security or
Securities in global form.
The Company may at any time in its sole discretion determine that Securities
issued in global form shall no longer be represented by such a Security or
Securities in global form. In such event the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
certificated Securities of such series of like tenor, shall authenticate and
deliver, Securities of such series of like tenor in certificated form, in
authorized denominations and in an aggregate principal
22
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.01 with respect to a series of
Securities, the Depository for such series may surrender a Security in global
form of such series in exchange in whole or in part for Securities of such
series in certificated form on such terms as are acceptable to the Company and
such Depository. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to each Person specified by such Depository a new certificated Security or
Securities of the same series of like tenor, of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Security in global form; and
(ii) to such Depository a new Security in global form of like tenor in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Security in global form and the aggregate principal amount of
certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities in certificated
form, such Security in global form shall be canceled by the Trustee. Unless
expressly provided with respect to the Securities of any series that such
Security may be exchanged for Bearer Securities, Securities in certificated form
issued in exchange for a Security in global form pursuant to this Section shall
be registered in such names and in such authorized denominations as the
Depository for such Security in global form, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the Persons in whose names such
Securities are so registered.
Whenever any Securities are 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 upon any 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 Registered Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Registrar or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company, the Registrar and the Trustee duly executed
by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or for any
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration or transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 8.06 or 10.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be
redeemed in part, the Company shall not be required (i) to issue, register the
transfer of, or exchange any Securities of that series for a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 10.03
and ending at the close of business on the day of such mailing; (ii) to register
the transfer of or exchange any Registered Security so selected for redemption,
in whole or in part, except the unredeemed portion of any Security
23
being redeemed in part; or (iii) to exchange any Bearer Security so selected for
redemption, except that such a Bearer Security may be exchanged for a Registered
Security of that series and like tenor; provided that such Registered Security
shall be simultaneously surrendered for redemption.
The foregoing provisions relating to registration, transfer and exchange may be
modified, supplemented or superseded with respect to any series of Securities by
a Board Resolution or in one or more indentures supplemental hereto.
Section 3.06. Replacement Securities. If a mutilated Security or a Security with
a mutilated coupon appertaining to it is surrendered to the Trustee, together
with, in proper cases, such security or indemnity as may be required by the
Company and the Trustee to save each of them harmless, the Company shall execute
and the Trustee shall authenticate and deliver a replacement Registered
Security, if such surrendered Security was a Registered Security, or a
replacement Bearer Security with coupons corresponding to the coupons
appertaining to the surrendered Security, if such surrendered Security was a
Bearer Security, of the same series and date of maturity, if the Trustee's
requirements are met, containing identical terms and of like tenor and of like
principal amount.
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 or coupon 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 or coupon has been acquired by a bona
fide purchaser, the Company shall execute and the Trustee shall authenticate and
deliver in lieu of any such destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not destroyed, lost or stolen), a replacement Registered
Security, if such Holder's Claim appertains to a Registered Security, or a
replacement Bearer Security with coupons corresponding to the coupons
appertaining to the destroyed, lost or stolen Bearer Security or the Bearer
Security to which such lost, destroyed or stolen coupon appertains, if such
Holder's claim appertains to a Bearer Security, of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding with coupons corresponding to the coupons, if any,
appertaining to the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security or coupon, pay such Security or coupon;
provided, however, that payment of principal of and any premium or interest on
Bearer Securities shall, except as otherwise provided in Section 9.02, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require that 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, its agents and counsel) connected
therewith.
Every new Security of any series with its coupons, if any, issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security, or in exchange
for a Security to which a destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupon, if any, or the
destroyed, lost or stolen coupon, 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 and their
coupons, if any, duly issued hereunder.
24
The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided as contemplated by Section 3.01 with respect to
any series of Securities, interest, if any, on any Registered 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.
Unless otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, (i) interest, if any, on Bearer Securities shall be paid
only against presentation and surrender of the coupons for such interest
installments as are evidenced thereby as they mature and (ii) original issue
discount, if any, on Bearer Securities shall be paid only against presentation
and surrender of such Securities; in either case at the office of a Paying Agent
located outside the United States, unless the Company shall have otherwise
instructed the Trustee in writing, provided that any such instruction for
payment in the United States does not cause any Bearer Security to be treated as
a "registration-required obligation" under United States laws and regulations.
The interest, if any, on any temporary Bearer Security shall be paid, as to any
installment of interest evidenced by a coupon attached thereto only upon
presentation and surrender of such coupon and, as to other installments of
interest, only upon presentation of such Security for notation thereon of the
payment of such interest. If at the time a payment of principal of or interest,
if any, on a Bearer Security or coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
Dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States, provided that provision
for such payment in the United States would not cause such Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.01 with respect to
any series of Securities, any interest on Registered Securities of any series
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date for such Registered Securities (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holders on the relevant
Regular Record Date by virtue of their having been such Holders, 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 such Defaulted Interest to the
Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall deliver written notice of such election
to the Trustee, which notice shall include the date of the proposed payment. 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 (1)
provided. Thereupon the 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
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proposed payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder of such Registered
Securities at his address as it appears in the 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 such
Registered Securities (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). In case a Bearer
Security of any series is surrendered at the office or agency in a Place of
Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(2) The Company may make payment of such Defaulted Interest to the Persons in
whose names such Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a specified date in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which such Registered 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 (2), such manner of
payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and Section
3.05, 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.
Section 3.08. Persons Deemed Owners. Prior to due presentment of any Registered
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 Registered
Security is registered as the owner of such Registered Security for the purpose
of receiving payment of principal of, premium, if any, and (subject to Sections
3.05 and 3.07) interest on and Additional Amounts with respect to such
Registered Security and for all other purposes whatsoever, whether or not such
Registered 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.
The Company, the Trustee and any agent of the Company or the Trustee may treat
the bearer of any Bearer Security and the bearer of any coupon as the absolute
owner of such Bearer Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee or any agent of the Company or the Trustee
shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depository (or its nominee) as a Holder, with respect to such
Security in global form or impair, as between such Depository and owners of
beneficial interests in such Security in global form, the
26
operation of customary practices governing the exercise of the rights of such
Depository (or its nominee) as Holder of such Security in global form.
Section 3.09. Cancellation. The Company at any time may deliver Securities and
coupons to the Trustee for cancellation. The Registrar and any Paying Agent
shall forward to the Trustee any Securities and coupons surrendered to them for
replacement, for registration of transfer, or for exchange or payment. The
Trustee shall cancel all Securities and coupons surrendered for replacement, for
registration of transfer, or for exchange, payment, redemption or cancellation
and may, but shall not be required to, dispose of canceled Securities and
coupons and issue a certificate of destruction to the Company. The Company may
not issue new Securities to replace Securities that it has paid or delivered to
the Trustee for cancellation.
Section 3.10. Computation of Interest. Except as otherwise specified as
contemplated by Section 3.01, 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, in such case, 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.
Section 3.12. Currency and Manner of Payment in Respect of SECURITIES.
(a) Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of, premium, if any, and interest, if any, on any
Registered or Bearer Security of such series will be made in the currency or
currencies or currency unit or units in which such Registered Security or Bearer
Security, as the case may be, is payable. The provisions of this Section
3.12 may be modified or superseded pursuant to Section 3.01 with respect to any
Securities.
(b) It may be provided pursuant to Section 3.01, with respect to Registered
Securities of any series, that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of, premium, if
any, or interest, if any, on such Registered Securities in any of the currencies
or currency units which may be designated for such election by delivering to the
Trustee (or the applicable Paying Agent) a written election with signature
guarantees and in the applicable form established pursuant to
Section 3.01, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such currency or currency unit, such election will
remain in effect for such Holder or any transferee of such Holder until changed
by such Holder or such transferee by written notice to the Trustee (or any
applicable Paying Agent) for such series of Registered Securities (but any such
change must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date, and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article IV or with respect to which a
notice of redemption has been given by or on behalf of the Company pursuant to
Article X). Any Holder of any such Registered Security who shall not have
delivered any such
27
Election to the Trustee (or any applicable Paying Agent) not later than the
close of business on the applicable Election Date will be paid the amount due on
the applicable payment date in the relevant currency or currency unit as
provided in Section 3.12(a). The Trustee (or the applicable Paying Agent) shall
notify the Exchange Rate Agent as soon as practicable after the Election Date of
the aggregate principal amount of Registered Securities for which Holders have
made such written election.
(c) If the election referred to in paragraph (b) above has been provided for
with respect to any Registered Securities of a series pursuant to Section 3.01,
then, unless otherwise specified pursuant to Section 3.01 with respect to any
such Registered Securities, not later than the fourth Business Day after the
Election Date for each payment date for such Registered Securities, the Exchange
Rate Agent will deliver to the Company a written notice specifying, in the
currency or currencies or currency unit or units in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of,
premium, if any, and interest, if any, on such Registered Securities to be paid
on such payment date, and specifying the amounts in such currency or currencies
or currency unit or units so payable in respect of such Registered Securities as
to which the Holders of Registered Securities denominated in any currency or
currencies or currency unit or units shall have elected to be paid in another
currency or currency unit as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for with respect to any
Registered Securities of a series pursuant to Section 3.01, and if at least one
Holder has made such election, then, unless otherwise specified pursuant to
Section 3.01, on the second Business Day immediately preceding such payment date
the Company will deliver to the Trustee (or the applicable Paying Agent) an
Exchange Rate Officers' Certificate in respect of the Dollar, Foreign Currency
or Currencies, ECU or other currency unit payments to be made on such payment
date. Unless otherwise specified pursuant to Section 3.01, the Dollar, Foreign
Currency or Currencies, ECU or other currency unit amount receivable by Holders
of Registered Securities who have elected payment in a currency or currency unit
as provided in paragraph (b) above shall be determined by the Company on the
basis of the applicable Market Exchange Rate in effect on the second Business
Day (the "Valuation Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) If a Conversion Event occurs with respect to a Foreign Currency, ECU or any
other currency unit in which any of the Securities are denominated or payable
otherwise than pursuant to an election provided for pursuant to paragraph (b)
above, then, with respect to each date for the payment of principal of, premium,
if any, and interest, if any, on the applicable Securities denominated or
payable in such Foreign Currency, ECU or such other currency unit occurring
after the last date on which such Foreign Currency, ECU or such other currency
unit was used (the "Conversion Date"), the Dollar shall be the currency of
payment for use on each such payment date (but such Foreign Currency, ECU or
such other currency unit that was previously the currency of payment shall, at
the Company's election, resume being the currency of payment on the first such
payment date preceded by 15 Business Days during which the circumstances which
gave rise to the Dollar becoming such currency no longer prevail). Unless
otherwise specified pursuant to Section 3.01, the Dollar amount to be paid by
the Company to the Trustee or any applicable Paying Agent and by the Trustee or
any applicable Paying Agent to the Holders of such Securities with respect to
such payment date shall be, in the case of a Foreign Currency other than a
currency unit, the Dollar Equivalent of the Foreign Currency or in the case of a
Foreign Currency that is a currency unit, the Dollar Equivalent of the Currency
limit, in each case as determined by the Exchange Rate Agent in the manner
provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.01, if the Holder of a
Registered Security denominated in any currency or currency unit shall have
elected to be paid in another currency or currency unit or in other currencies
as provided in paragraph (b) above, and (i) a Conversion Event occurs with
respect to any such elected currency or currency unit, such Holder shall receive
payment in the currency or currency unit in which payment would have been made
in the absence of such election and
28
(ii) if a Conversion Event occurs with respect to the currency or currency unit
in which payment would have been made in the absence of such election, such
Holder shall receive payment in Dollars as provided in paragraph (d) of this
Section 3.12 (but, subject to any contravening valid election pursuant to
paragraph (b) above, the elected payment currency or currency unit, in the case
of the circumstances described in clause (i) above, or the payment currency or
currency unit in the absence of such election, in the case of the circumstances
described in clause (ii) above, shall, at the Company's election, resume being
the currency or currency unit of payment with respect to Holders who have so
elected, but only with respect to payments on payment dates preceded by 15
Business Days during which the circumstances which gave rise to such currency or
currency unit, in the case of the circumstances described in clause (i) above,
or the Dollar, in the case of the circumstances described in clause (ii) above,
as applicable, becoming the currency or currency unit of payment, no longer
prevail).
(f) The "Dollar Equivalent of the Foreign Currency" shall be determined by the
Exchange Rate Agent and shall be obtained for each subsequent payment date by
the Exchange Rate Agent by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by the
Exchange Rate Agent and, subject to the provisions of paragraph (h) below, shall
be the sum of each amount obtained by converting the specified amount of each
Component Currency (as each such term is defined in paragraph (h) below) into
Dollars at the Market Exchange Rate for such Component Currency on the Valuation
Date with respect to each payment.
(h) For purposes of this Section 3.12 the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the Conversion Date,
was a component currency of the relevant currency unit, including, but not
limited to, ECU.
"Election Date" shall mean the Regular Record Date for the applicable series of
Registered Securities as specified pursuant to Section 3.01 by which the written
election referred to in Section 3.12(b) may be made.
A "Specified Amount" of a Component Currency shall mean the number of units of
such Component Currency or fractions thereof which such Component Currency
represented in the relevant currency unit, including, but not limited to, ECU,
on the Conversion Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective specified Amounts of such
consolidated Component Currencies expressed in such single currency, and such
amount shall thereafter be a Specified Amount and such single currency shall
thereafter be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by specified amounts of such two or
more currencies, the sum of which, at the Market Exchange Rate of such two or
more currencies on the date of such replacement, shall be equal to the Specified
Amount of such former Component Currency and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component Currencies.
If, after the Conversion Date of the relevant currency unit, including, but not
limited to, ECU, a Conversion Event (other than any event referred to above in
this definition
29
of "Specified Amount") occurs with respect to any Component Currency of such
currency unit and is continuing on the applicable Valuation Date, the Specified
Amount of such Component Currency shall, for purposes of calculating the Dollar
Equivalent of the Currency Unit, be converted into Dollars at the Market
Exchange Rate in effect on the Conversion Date of such Component Currency.
All decisions and determinations of the Exchange Rate Agent regarding the Dollar
Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit,
the Market Exchange Rate and changes in the Specified Amounts as specified above
shall be in its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the Company, the
Trustee (and any applicable Paying Agent) and all Holders of Securities
denominated or payable in the relevant currency, currencies or currency units.
The Exchange Rate Agent shall promptly give written notice to the Company and
the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a Conversion Event
has occurred with respect to a Foreign Currency, the Company will promptly give
written notice thereof to the Trustee of the appropriate series of Securities
(or any applicable Paying Agent) and to the Exchange Rate Agent (and the Trustee
(or such Paying Agent) will promptly thereafter give notice in the manner
provided in Section 1.06 to the affected Holders) specifying the Conversion
Date. In the event the Company so determines that a Conversion Event has
occurred with respect to ECU or any other currency unit in which Securities are
denominated or payable, the Company will promptly give written notice thereof to
the Trustee (or any applicable Paying Agent) and to the Exchange Rate Agent (and
the Trustee (or such Paying Agent) will promptly thereafter give notice in the
manner provided in Section 1.06 to the affected Holders) specifying the
Conversion Date and the Specified Amount of each Component Currency on the
Conversion Date. In the event the Company determines in good faith that any
subsequent change in any Component Currency as set forth in the definition of
Specified Amount above has occurred, the Company will similarly give written
notice to the Trustee (or any applicable Paying Agent) and to the Exchange Rate
Agent.
The Trustee of the appropriate series of Securities shall be fully justified and
protected in relying and acting upon information received by it from the Company
and the Exchange Rate Agent and shall not otherwise have any duty or obligation
to determine the accuracy or validity of such information independent of the
Company or the Exchange Rate Agent.
Section 3.13. Appointment and Resignation of Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 3.01, if and so long as the
Securities of any series (i) are denominated in a currency other than Dollars or
(ii) may be payable in a currency other than Dollars, or so long as it is
required under any other provision of this Indenture, then the Company will
maintain with respect to each such series of Securities, or as so required, at
least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to
make the necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 3.12 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting the issued
currency or currencies or currency unit or units into the applicable payment
currency or currency unit for the payment of principal, premium, if any, and
interest, if any, pursuant to Section 3.12.
(b) No resignation of the Exchange Rate Agent and no appointment of a successor
Exchange Rate Agent pursuant to this Section shall become effective until the
acceptance of appointment by the successor Exchange Rate Agent as evidenced by a
written instrument delivered to the Company and the Trustee of the appropriate
series of Securities accepting such appointment executed by the successor
Exchange Rate Agent.
30
(c) If the Exchange Rate Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Exchange Rate Agency
for any cause, with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 3.01 at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same currency or currencies or currency unit or units).
ARTICLE IV
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.01. Termination of Company's Obligations Under the Indenture. This
Indenture shall upon a Company Request cease to be of further effect with
respect to Securities of or within any series and any coupons appertaining
thereto (except as to any surviving rights of registration of transfer or
exchange of such Securities and replacement of such Securities which may have
been lost, stolen or mutilated as herein expressly provided for) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture (including but not
limited to Article XII) with respect to such Securities and any coupons
appertaining thereto when
(1) either
(A) all such Securities previously authenticated and delivered and all coupons
appertaining thereto (other than (i) such coupons appertaining to Bearer
Securities surrendered in exchange for Registered Securities and maturing after
such exchange, surrender of which is not required or has been waived as provided
in Section 3.05, (ii) such Securities and coupons which have been destroyed,
lost or stolen and which have been replaced or paid, as provided in Section
3.06, (iii) such coupons appertaining to Bearer Securities called for redemption
and maturing after the relevant Redemption Date, surrender of which has been
waived as provided in Section 10.06 and (iv) such Securities and coupons 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 as provided in Section 9.03) have been delivered to the Trustee
for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto 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) if redeemable
at the option of the Company, 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 irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount in the currency or currencies or currency unit or units in
which the Securities of such series are payable, sufficient to pay and discharge
the entire indebtedness on such Securities and such coupons not theretofore
delivered to the Trustee for cancellation, for principal, premium, if any, and
interest, and any Additional Amounts payable as specified pursuant to Section
3.01(b)(17) with respect thereto, to the date of such deposit (in the
31
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 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 as to such series
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligation
of the Company to the Trustee and any predecessor Trustee under Section 6.07,
the obligations of the Company to any Authenticating Agent under Section 6.14
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section, the obligations of the Trustee under Section
4.02 and the last paragraph of Section 9.03 shall survive.
Section 4.02. Application of Trust Funds. Subject to the provisions of the last
paragraph of Section 9.03, 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, the coupons 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, premium, if any, and any interest for whose payment such money
has been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
Section 4.03. Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Covenant Defeasance. If pursuant to Section 3.01 provision is made
for either or both of (i) defeasance of the Securities of or within a series
under Section 4.04 or (ii) covenant defeasance of the Securities of or within a
series under Section 4.05, then the provisions of such Section or Sections, as
the case may be, together with the provisions of Sections 4.06 through 4.09
inclusive, with such modifications thereto as may be specified pursuant to
Section 3.01 with respect to any Securities, shall be applicable to such
Securities and any coupons appertaining thereto, and the Company may at its
option by or pursuant to Board Resolution, at any time, with respect to such
Securities and any coupons appertaining thereto, elect to have Section 4.04 (if
applicable) or Section 4.05 (if applicable) be applied to such Outstanding
Securities and any coupons appertaining thereto upon compliance with the
conditions set forth below in this Article.
Section 4.04. Defeasance and Discharge. Upon the Company's exercise of the
option specified in Section 4.03 applicable to this Section with respect to the
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Securities and any coupons
appertaining thereto on and after the date the conditions set forth in Section
4.06 are satisfied (hereinafter "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and any coupons appertaining thereto
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 4.07 and the other Sections of this Indenture referred to in clause (ii)
of this Section, and to have satisfied all its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall on a Company Order execute proper
instruments acknowledging the same), except the following which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of Holders of
such Securities and any coupons appertaining thereto to receive solely from the
trust funds described in Section 4.06(a) and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest,
if any, on such Securities or any coupons appertaining
32
thereto when such payments are due; (ii) the Company's obligations with respect
to such Securities under Sections 3.04, 3.05, 3.06, 9.02 and 9.03 and with
respect to the payment of additional amounts, if any, payable with respect to
such Securities as specified pursuant to Section 3.01(b)(17); (iii) the rights,
powers trusts, duties and immunities of the Trustee hereunder and (iv) this
Article IV. Subject to compliance with this Article IV, the Company may exercise
its option under this Section notwithstanding the prior exercise of its option
under Section 4.05 with respect to such Securities and any coupons appertaining
thereto. Following a defeasance, payment of such Securities may not be
accelerated because of an Event of Default.
Section 4.05. Covenant Defeasance. Upon the Company's exercise of the option
specified in Section 4.03 applicable to this Section with respect to any
Securities of or within a series, the Company shall be released from its
obligations under Sections 7.01(3), 7.01(4) and 9.07 and, if specified pursuant
to Section 3.01, its obligations under any other covenant, with respect to such
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 4.06 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 7.01(3), 7.01(4)and 9.07 or such other
covenant but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Securities and any coupons appertaining thereto, 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 Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 5.01(3) or 5.01(7), or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
Section 4.06. Conditions to Defeasance or Covenant Defeasance. The following
shall be the conditions to application of Section 4.04 or Section 4.05 to any
Securities of or within a series and any coupons appertaining thereto:
(a) The Company shall have deposited or caused to be deposited irrevocably with
the Trustee (or another trustee satisfying the requirements of Section 6.10 who
shall agree to comply with and shall be entitled to the benefits of, the
provisions of Sections 4.03 through 4.09 inclusive and the last paragraph of
Section 9.03 applicable to the Trustee, for purposes of such Sections also a
"Trustee") as trust funds in trust for the purpose of making the payments
referred to in clauses (x) and (y) of this Section 4.06(a), specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of such
Securities and any coupons appertaining thereto, with instructions to the
Trustee as to the application thereof, (A) money in an amount (in such currency,
currencies or currency unit or units in which such Securities and any coupons
appertaining thereto are then specified as payable at Maturity), or (B) if
Securities of such series are not subject to repayment at the option of Holders,
Government Obligations which through the payment of interest, principal,
premium, if any, and any Additional Amounts in respect thereof in accordance
with their terms will provide not later than one day before the due date of any
payment referred to in clause (x) or (y) of this Section 4.06(a), money in an
amount or (C) a combination thereof in an amount, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee to pay and discharge (x) the principal of, premium, if any, and
interest, if any, and any Additional Amounts on such Securities and any coupons
appertaining thereto on the Maturity of such principal or installment of
principal or interest and (y) any mandatory sinking fund payments applicable to
such Securities on the day on which such
33
payments are due and payable in accordance with the terms of this Indenture and
such Securities and any coupons appertaining thereto. Before such a deposit, the
Company may make arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article X which shall be
given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a Default or Event of Default under, this Indenture
or 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.
(c) In the case of an election under Section 4.04, the Company shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel to
the effect that (i) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (ii) since the date of execution
of this Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance and will be subject to Federal income tax on the
same amount and in the same manner and at the same times, as would have been the
case if such deposit, defeasance and discharge had not occurred.
(d) In the case of an election under Section 4.05, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of
such Securities and any coupons appertaining thereto will not recognize income,
gain or loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such covenant
defeasance had not occurred.
(e) The Company shall have delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance under Section 4.04 or the covenant defeasance under Section 4.05 (as
the case may be) including those contained in this Section 4.06 other than the
90 day period specified in Section 4.06(g), have been complied with.
(f) The Company shall have delivered to the Trustee an Officer's Certificate to
the effect that neither such Securities nor any other Securities of the same
series, if then listed on any securities exchange, will be delisted as a result
of such deposit.
(g) No event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to such Securities or any other Securities shall
have occurred and be continuing at the time of such deposit or, with regard to
any such event specified in Sections 5.01(5) and (6), 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).
(h) 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 unless such trust shall be registered under such
Act or exempt from registration thereunder.
(i) Such defeasance or covenant defeasance shall be effected in compliance with
any additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith as contemplated by Section 3.01.
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(j) No event or condition shall exist that, pursuant to Article XII, would
prevent the Company from making payments of principal of, premium, if any,
interest, if any, and any Additional Amounts on the Securities.
Section 4.07. Deposited Money and Government Obligations to Be Held in Trust.
Subject to the provisions of the last paragraph of Section 9.03, all money and
Government Obligations (or other property as may be provided pursuant to Section
3.01) (including the proceeds thereof) deposited with the Trustee pursuant to
Section 4.06 in respect of any Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any coupons appertaining
thereto 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 Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any, and any Additional Amounts,
but such money need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified with respect to any Security pursuant to Section
3.01, if, after a deposit referred to in Section 4.06(a) has been made,
(i) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.12(b) or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 4.06(a) has been made in respect of such
Security, or (ii) a Conversion Event occurs as contemplated in Section 3.12(d)
or 3.12(e) or by the terms of any Security in respect of indebtedness which the
deposit pursuant to Section 4.06(a) has been made, the indebtedness represented
by such Security and any coupons appertaining thereto shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of, premium, if any, and interest, if any, on such Security as the
same becomes due out of the proceeds yielded by converting (from time to time as
specified below in the case of any such election) the amount or other property
deposited in respect of such Security into the currency or currency unit in
which such Security becomes payable as a result of such election or Conversion
Event based on the applicable Market Exchange Rate for such currency or currency
unit in effect on the second Business Day prior to each payment date, except,
with respect to a Conversion Event, for such currency or currency unit in effect
(as nearly as feasible) at the time of the Conversion Event.
Section 4.08. Repayment to Company. Subject to the last paragraph of Section
9.03, the Trustee (and any Paying Agent) shall promptly pay to the Company upon
Company Request any excess money or securities held by them at any time.
Section 4.09. Indemnity for Government Obligations. The Company shall pay, and
shall indemnify the Trustee against, any tax, fee or other charge imposed on or
assessed against Government Obligations deposited pursuant to this Article or
the principal and interest and any other amount received on such Government
Obligations.
Section 4.10. Reinstatement. If the Trustee or the Paying Agent is unable to
apply any money or Government Obligations, as the case may be, in accordance
with this Article with respect to any Securities by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the obligations under this
Indenture, such Securities and any coupons appertaining thereto from which the
Company has been discharged or released pursuant to Section 4.04 or 4.05 shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article with respect to such Securities, until such time as the Trustee or
Paying Agent is permitted to apply all money or Government Obligations, as the
case may be, held in trust pursuant to Section 4.07 with respect to such
Securities and any coupons appertaining thereto in accordance with this Article;
provided, however, that if the Company makes any payment of principal of
35
or any premium or interest on any such Security following such reinstatement of
its obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities or coupons to receive such payment from the money or
Government Obligations, as the case may be, so held in trust.
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.01. Events of Default. An "Event of Default" occurs with respect to
the Securities of any series if (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 payment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(1) the Company defaults in the payment of interest on any Security of that
series or any coupon appertaining thereto or any additional amount payable with
respect to any Security of that series as specified pursuant to Section
3.01(b)(17) when the same becomes due and payable and such default continues for
a period of 30 days;
(2) the Company defaults in the payment of the principal of or any premium on
any Security of that series when the same becomes due and payable at its
Maturity or on redemption or otherwise, or in the payment of a mandatory sinking
fund payment when and as due by the terms of the Securities of that series;
(3) the Company fails to comply in any material respect with any of its
agreements or covenants in, or any of the provisions of, this Indenture with
respect to any Security of that series (other than an agreement, covenant or
provision for which non-compliance is elsewhere in this Section specifically
dealt with), and such non-compliance continues for a period of 60 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 the 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;
(4) a default under any mortgage, agreement, indenture or instrument under which
there may be issued, or by which there may be secured, guaranteed or evidenced
any Debt of the Company (including this Indenture) whether such Debt now exists
or shall hereafter be created, in an aggregate principal amount then outstanding
of $25,000,000 or more, which default (a) shall constitute a failure to pay any
portion of the principal of such Debt when due and payable after the expiration
of an applicable grace period with respect thereto or (b) shall result in such
Debt becoming or being declared due and payable prior to the date on which it
would otherwise become due and payable, and such acceleration shall not be
rescinded or annulled, or such Debt shall not be paid in full within a period of
30 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 aggregate principal amount of the Outstanding Securities of that
series a written notice specifying such event of default and requiring the
Company to cause such acceleration to be rescinded or annulled or to pay in full
such Debt and stating that such notice is a "Notice of Default" hereunder; (it
being understood however, that the Trustee shall not be deemed to have knowledge
of such default under such agreement or instrument unless either (A) a
Responsible Officer of the Trustee shall have actual knowledge of such default
or (B) a Responsible Officer of 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 under any such agreement or other instrument);
provided, however, that if such default under such agreement or instrument is
36
remedied or cured by the Company or waived by the holders of such indebtedness,
then the Event of Default hereunder by reason thereof shall be deemed likewise
to have been thereupon remedied, cured or waived without further action upon the
part of either the Trustee or any of such Holders; provided, further, that the
foregoing shall not apply to any secured Debt under which the obligee has
recourse (exclusive of recourse for ancillary matters such as environmental
indemnities, misapplication of funds, costs of enforcement and the like) only to
the collateral pledged for repayment so long as the fair market value of such
collateral does not exceed 2% of Total Assets at the time of the default;
(5) the Company, pursuant to or within the meaning of any Bankruptcy Law, (A)
commences a voluntary case or proceeding, (B) consents to the entry of an order
for relief against it in an involuntary case or proceeding, (C) consents to the
appointment of a Custodian of it or for all or substantially all of its
property, (D) makes a general assignment for the benefit of its creditors, (E)
makes an admission in writing of its inability to pay its debts generally as
they become due or (F) takes corporate action in furtherance of any such action;
(6) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that (A) is for relief against the Company, in an involuntary
case, (B) adjudges the Company as bankrupt or insolvent, or approves as properly
filed a petition seeking reorganization, arrangement, and adjustment or
composition of or in respect of the Company, or appoints a Custodian of the
Company, or for all or substantially all of its property, or (C) orders the
liquidation of the Company and the decree remains unstayed and in effect for 60
days; or
(7) any other Event of Default provided as contemplated by Section 3.01 with
respect to Securities of that series.
The Company shall deliver to the Trustee, within 90 days after the occurrence
thereof, written notice in the form of an Officers' Certificate of any event
which is or with the giving of notice or the lapse of time would become an event
which is or with the giving of notice or the lapse of time would become an Event
of Default, its status and what action the Company is taking or proposes to take
with respect thereto.
As used in the Indenture, the term "Bankruptcy Law" means Title 11, U.S. Code,
or any similar federal or state bankruptcy, insolvency, reorganization or other
law for the relief of debtors. As used in the Indenture, the term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Section 5.02. Acceleration; Rescission and Annulment. If an Event of Default
with respect to the Securities of any series at the time Outstanding occurs and
is continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of all of the Outstanding Securities of that series by written notice to
the Company (and if given by the Holders, to the Trustee), may declare the
principal (or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the Original principal amount
as may be specified in the terms of that series) of and accrued interest, if
any, on all the Securities of that series to be due and payable and upon any
such declaration such principal (or, in the case of Original Issue Discount
Securities or Indexed Securities, such specified amount) and interest, if any,
shall be immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities
of any series has been made and before a judgement 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 aggregate principal
37
amount of the Outstanding Securities of that series, by written notice to 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) in the currency or currency unit in which that series of Securities is
payable, all overdue interest on all Securities of that series and any related
coupons and any Additional Amounts,
(B) in the currency or currency unit in which that series of Securities is
payable, 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 any
Additional Amounts payable, 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 existing Defaults and 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 5.07. 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 or coupon, if
any, when such interest or any Additional Amounts 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 and coupons, if any, the whole amount then due and
payable on such Securities and coupons for principal, premium, if any, and
interest and any Additional Amounts, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal,
premium, if any, and on any overdue interest and any Additional Amounts, at the
rate or rates prescribed therefor in such Securities or coupons, if any, 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
38
Securities of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to secure
any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim. The Trustee may file such proofs
of claim and other papers or documents and take such actions authorized under
the Trust Indenture Act as may be necessary or advisable in order to have the
claims of the Trustee and the Holders of Securities allowed in any judicial
proceedings relating to the Company, its creditors or its property. 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 of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder of a Security or coupon in
any such proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the 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, in its own name as an express trust,
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto and any recovery of judgment shall,
after provision for the reasonable fees and expenses of the Trustee and its
counsel, be for the ratable benefit of the Holders of the Securities and coupons
in respect to which judgment was recovered.
Section 5.06. Delay or Omission Not Waiver. No delay or omission by the Trustee
or any Holder of any Securities to exercise any right or remedy accruing upon an
Event of Default shall impair any such right or remedy or constitute a waiver of
or acquiescence in any such Event of Default. Every right and remedy given by
this Article or by law to the Trustee or to the Holders of Securities or coupons
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders of Securities or coupons, as the case may be.
Section 5.07. Waiver of Past Defaults. The Holders of a majority in aggregate
principal amount of Outstanding Securities of any series by written notice to
the Trustee may waive on behalf of the Holders of all Securities of such series
and any related coupons a past Default or Event of Default with respect to that
series and its consequences except (i) a Default or Event of Default in the
payment of the principal of, premium, if any, or interest or any Additional
Amounts on any Security of such series or any coupon appertaining thereto or
(ii) in respect of a covenant or provision hereof which pursuant to Section 8.02
cannot be amended or modified 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.
Section 5.08. Control by Majority. The Holders of a majority in aggregate
principal amount of the Outstanding Securities of each series affected (with
each such series voting as a class) shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available
39
to the Trustee or exercising any trust or power conferred on it with respect to
Securities of that series; provided, however, that (i) the Trustee may refuse to
follow any direction that conflicts with law or this Indenture (ii) the Trustee
may refuse to follow any direction that is unduly prejudicial to the rights of
the Holders of Securities of such series not consenting or of any other series
for which the Trustee is trustee, or that would in the good faith judgment of
the Trustee have a substantial likelihood of involving the Trustee in personal
liability and (iii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction. Prior to the taking of
any action hereunder, the Trustee shall be entitled to reasonable
indemnification satisfactory to the Trustee against all losses and expenses
caused by taking or not taking such action. This paragraph shall be in lieu of
Section 316(a)(1)(A) of the Trust Indenture Act and such Section 316(a)(1)(A) is
hereby expressly excluded from this Indenture, as permitted By the Trust
Indenture Act.
Section 5.09. Limitation on Suits by Holders. No Holder of any Security of any
series or any coupons appertaining thereto 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) the Holder 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 at least 25% in aggregate principal amount of the Outstanding
Securities of that series have made a 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 indemnity satisfactory to
the Trustee against any loss, liability or expense to be, or which may be,
incurred by the Trustee in pursuing the remedy;
(4) the Trustee for 60 days after its receipt of such notice, request and the
offer of indemnity has failed to institute any such proceedings; and
(5) during such 60 day period, the Holders of a majority in aggregate principal
amount of the Outstanding Securities of that series have not given to the
Trustee a direction inconsistent with such written request.
No one or more 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 5.10. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder of a Security or coupon to
receive payment of principal of, premium, if any, and, subject to Sections 3.05
and 3.07, interest on the Security and any Additional Amounts, on or after the
respective due dates expressed in the Security (or, in case of redemption, on
the redemption dates), and the right of any Holder of a coupon to receive
payment of interest due as provided in such coupon, or, subject to Section 5.09,
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
40
Section 5.11. Application of Money Collected. If the Trustee collects any money
pursuant to this Article, it shall pay out the money 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, premium, if any, or interest, and any Additional
Amounts upon presentation of the Securities or coupon or both and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: to the Trustee for amounts due under Section 6.07;
SECOND: subject to the provisions of Article XII, to Holders of Securities and
coupons in respect of which or for the benefit of which such money has been
collected for amounts due and unpaid on such Securities for principal of,
premium, if any, and interest or any Additional Amounts, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal, premium, if any, and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 5.11. At least 15 days before such record date, the
Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies. If the Trustee or any Holder
of a Security or coupon has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, 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 of Securities and coupons shall
continue as though no such proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities or coupons in the last paragraph of Section 3.06, no right or remedy
herein conferred upon or reserved to the Trustee or 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 existing right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. 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.
Section 5.15. 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 or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorney's fees, against any party litigant in the suit
having due regard to the merits and good faith of the
41
claims or defenses made by the party litigant provided 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 by the Trustee.
Section 5.16. Judgment Currency. If, for the purpose of obtaining a judgment in
any court with respect to any obligation of the Company hereunder or under any
Security or any related coupon, it shall become necessary to convert into any
other currency or currency unit any amount in the currency or currency unit due
hereunder or under such Security or coupon, then such conversion shall be made
by the Exchange Rate Agent at the Market Exchange Rate as in effect on the date
of entry of the judgment (the "Judgment Date"). If pursuant to any such
judgment, conversion shall be made on a date (the "Substitute Date") other than
the Judgment Date and there shall occur a change between the Market Exchange
Rate as in effect on the Judgment Date and the Market Exchange Rate as in effect
on the Substitute Date, the Company agrees to pay such additional amounts (if
any) as may be necessary to ensure that the amount paid is equal to the amount
in such other currency or currency unit which, when converted at the Market
Exchange Rate as in effect on the Judgment Date, is the amount due hereunder or
under such Security or coupon. Any amount due from the Company, under this
Section 5.16 shall be due as a separate debt and is not to be affected by or
merged into any judgment being obtained for any other sums due hereunder or in
respect of any Security or coupon. In no event, however, shall the Company be
required to pay more in the currency or currency unit due hereunder under such
Security or coupon at the Market Exchange Rate as in effect on the Judgment Date
than the amount of currency or currency unit stated to be due hereunder or under
such Security or coupon so that in any event the Company's obligations hereunder
or under such Security or coupon will be effectively maintained as obligations
in such currency or currency unit, and the Company shall be entitled to withhold
(or be reimbursed for, as the case may be) any excess of the amount actually
realized upon any such conversion on the Substitute Date over the amount due and
payable on the Judgment Date.
ARTICLE VI
THE TRUSTEE
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 man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default:
(1) The Trustee shall not be liable except for the performance of such duties as
are specifically set forth herein; and
(2) In the absence of bad faith on its part, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions 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 examine such certificates and opinions to determine whether or
not they substantially conform to the requirements of this Indenture.
(c) The Trustee shall not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
42
(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 of the Trustee, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(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 5.08.
(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 any
of its duties hereunder or to take or omit to take any action under this
Indenture or take any action at the request or direction of Holders if it shall
have reasonable grounds for believing that repayment of such funds is not
assured to it or it does not receive from such Holders an indemnity satisfactory
to it in its sole discretion against such risk, liability, loss, fee or expense
which might be incurred by it in compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b), (c) and (d) of this Section 6.01.
(f) The Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree in writing with the Company. Money held in trust
by the Trustee need not be segregated from other funds except to the extent
required by law.
Section 6.02. Rights of Trustee. Subject to Section 6.01:
(a) The Trustee may conclusively rely on any document 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 the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers'
Certificate and/or an Opinion of Counsel, which shall conform to the provisions
of Section 1.02. 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 attorneys and agents of its selection and shall
not be responsible for the misconduct or negligence of any agent or attorney
(other than an agent who is an employee of the Trustee) appointed with due care
and appointed with the consent of the Company.
(d) The Trustee shall not be liable for any action it takes or omits to take in
good faith which it reasonably believes to be authorized or within its rights or
powers.
(e) Before the Trustee acts or refrains from acting, it may consult with counsel
of its own selection and the advice or opinion of such counsel as to matters of
law shall be full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.
(f) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupon appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 3.03 which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.
43
(g) The Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(h) The Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at the
expense of the Company and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation.
(i) 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 the Trustee shall have received written notice thereof at the Corporate
Trust Office of the Trustee, and such notice references the Securities and this
Indenture.
(j) The Trustee shall not be required to give any bond or surety in respect of
the performance of its powers and duties hereunder.
(k) The permissive rights of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its gross negligence or willful misconduct.
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 coupons and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee, subject to Section 6.10 hereof. Any Agent may do
the same with like rights. However, the Trustee is subject to Sections 6.10 and
6.11. The Trustee may rely and shall be protected in acting or refraining from
acting upon any document believed by it to be genuine and to have been signed or
presented by the proper party or parties. The Trustee need not investigate any
fact or matter stated in the document.
Section 6.04. Trustee's Disclaimer. The Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Indenture or the
Securities or any coupon, 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 of the Company in this Indenture or any document issued in connection
with the sale of Securities or any statement in the Securities other than the
Trustee's certificate of authentication.
Section 6.05. Notice of Defaults. If a Default or an Event of Default occurs and
is continuing with respect to the Securities of any series and any Responsible
Officer of the Trustee has actual knowledge of such Defaults or Events of
Default, the Trustee shall mail to each Holder of Securities of that series
notice of the Default or Event of Default within 30 days after the occurrence
thereof. Except in the case of a Default or an Event of Default in payment on
any Security or a Default or Event of Default in complying with Section 7.01,
the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interest of Holders of Securities of that series. This Section 6.05 shall be
in lieu of the proviso to Section 315(b) of the Trust Indenture Act and such
proviso to Section
44
315(b) of the Trust Indenture Act is hereby expressly excluded from this
Indenture and the Securities, as permitted by the Trust Indenture Act.
Section 6.06. Reports by Trustee to Holders. If required by Section
313(a) of the Trust Indenture Act, as amended, within 60 days after each May 15
beginning with the first May 15 after the first issuance of Securities pursuant
to this Indenture, the Trustee shall mail to each Holder a report dated as of
such May 15 that complies with Section 313(a) of the Trust Indenture Act. The
Trustee also shall comply with Sections 313(b), (c) and (d) of the Trust
Indenture Act.
A copy of each such report at the time of its mailing to Holders shall be filed
with the Commission and each stock exchange, if any, on which the Securities are
listed.
The Company shall promptly notify the Trustee in writing if the Securities
become listed on any stock exchange or of any delisting thereof.
Section 6.07. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as the Company and the Trustee shall
from time to time agree in writing for its services. 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
disbursements, expenses and advances, including all costs and expenses of
collection (including reasonable fees, disbursements and expenses of its agents
and outside counsel) incurred or made by it in addition to the compensation for
its services except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or willful misconduct. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents, accountants, experts and outside counsel and any taxes or
other expenses incurred by a trust created pursuant to Section 4.01 hereof.
(b) The Company shall fully indemnify the Trustee for, and hold it harmless
against any and all loss, damage, claims, liability or expense, including taxes
(other than franchise taxes imposed on the Trustee and taxes based upon,
measured by or determined by the income of the Trustee), arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent that
such loss, damage, claim, liability or expense is due to its own negligence or
willful misconduct. The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. However, the
failure by the Trustee to so notify the Company of a claim of which a
Responsible Officer of the Trustee has actual knowledge shall not relieve the
Company of its obligations hereunder unless the Company has been materially
prejudiced thereby. The Company shall defend the claim and the Trustee shall
cooperate in the defense at the Company's expense, provided that the Company
shall not be liable in any action or for which it has assumed the defense for
the expenses of separate counsel to the Trustee unless (1) the employment of
separate counsel has been authorized by the Company, (2) the Trustee has
reasonably concluded (based upon advice of counsel to the Trustee) that there
may be legal defenses available to the Trustee that are different from or in
addition to those available to the Company or (3) a conflict or potential
conflict exists (based upon advice of counsel to the Trustee) between the
Trustee and the Company, and provided, further, that in any such event the
Company's reimbursement obligation with respect to separate counsel of the
Trustee will be limited to the reasonable fees and expenses of such counsel.
(c) 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
45
indemnify against any loss or liability incurred by the Trustee as a result of
its own negligence or willful misconduct.
(d) To secure the Company's payment obligations in this Section 6.07, the
Trustee shall have a lien prior to the Securities of any series against all
money or property held or collected by the Trustee, in its capacity as Trustee,
except money or property held in trust to pay principal of, premium, if any, or
interest or any Additional Amounts on particular Securities.
When the Trustee incurs expenses or renders services after an Event of Default
specified in Section 5.01(5) or (6) occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation for
the services shall be preferred over the status of the Holders in a proceeding
under any applicable Federal or state bankruptcy, insolvency or other similar
law and are intended to constitute expenses of administration under any such
law. The Company's rights under this Section 6.07 and any claim arising
hereunder shall survive the resignation or removal of any Trustee, the discharge
of the Company's obligations pursuant to Article Four and any rejection or
termination under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this Indenture
or the resignation or removal of the Trustee.
Section 6.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in writing. The
Holders of a majority in principal amount of the outstanding Securities of any
series may remove the Trustee with respect to that series by so notifying the
Trustee and the Company in writing and may appoint a successor Trustee for such
series with the Company's consent. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 6.10;
(b) the Trustee is adjudged bankrupt or insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or other public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee with respect to Securities of one or more series resigns or is
removed or if a vacancy exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the retiring Trustee), the
Company shall promptly appoint a successor Trustee with respect to that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series). Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities of such series
may appoint a successor Trustee 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. As promptly as practicable after that, the
retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 6.07, all property held by it as Trustee 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 the rights, powers and
46
duties of the Trustee with respect to the Securities of such series under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder of Securities of such series.
If a successor Trustee does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of at least 10% in principal amount of the outstanding Securities of such series
may petition, at the expense of the Company, any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Holder may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
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 Merger, etc. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation or banking corporation, the
resulting, surviving or transferee corporation or banking corporation without
any further act shall be the successor Trustee; provided, however, that such
corporation shall be otherwise qualified and eligible under this Article Six.
Section 6.10. Eligibility; Disqualification. This Indenture shall always have a
Trustee which shall be eligible to act as Trustee under Sections 310(a)(1) and
310(a)(2) of the Trust Indenture Act. The Trustee or, if a member of a bank
holding company, its parent shall have a combined capital and surplus of at
least $100,000,000 as set forth in its most recent published annual report of
condition. If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall comply with the provisions of Section 310(b) of the Trust
Indenture Act; provided, however, that there shall be excluded from the
operation of Section 310(b)(1) of the Trust Indenture Act any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in Section 310(b)(1) of the Trust
Indenture Act are met. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.10, the Trustee shall resign
immediately in the manner and with the effect hereinbefore specified in this
Article Six. The provisions of Section 310 of the Trust Indenture Act shall
apply to the Company and any other obligor of the Securities.
Section 6.11. Preferential Collection of Claims Against the Company. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
Section 6.12. Trustee's Application for Instructions from the Company. Any
application by the Trustee for written instructions from the Company may, at the
option of the Trustee, set forth in writing any action proposed to be taken or
omitted by the Trustee under this Indenture and the date on and/or after which
such action shall be taken or such omission shall be effective. The Trustee
shall not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
47
Section 6.13. Securityholder Lists. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders of Securities of each series. If the Trustee is
not the Registrar, the Company shall furnish to the Trustee semiannually on or
before the last day of June and December in each year, and at such other times
as the Trustee may request in writing, a list, in such form and as of such date
as the Trustee may reasonably require containing all the information in the
possession or control of the Registrar, the Company or any of its Paying Agents
other than the Trustee as to the names and addresses of Holders of Securities of
each such series. If there are Bearer Securities of any series Outstanding, even
if the Trustee is the Registrar, the Company shall furnish to the Trustee such a
list containing such information with respect to Holders of such Bearer
Securities only.
Section 6.14. Appointment of Authenticating Agent. The Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue, exchange, registration of
transfer or partial redemption thereof, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, a copy of which Instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as may
otherwise be provided pursuant to Section 3.01, shall at all times be a bank or
trust company or corporation organized and doing business and in good standing
under the laws of the United States of America or of any State or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign by
giving written notice of resignation to the Trustee for such series and to the
Company. The Trustee for any series of Securities may at any time terminate the
agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 1.06. Any successor Authenticating Agent upon acceptance
48
of its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to this
Section, the Securities of such series may have endorsed thereon, in addition to
or in lieu of the Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following form:
This is one of the Securities of the series described in the within- mentioned
Indenture.
______________________________, as Trustee
By: __________________________________ as Authenticating Agent
By: __________________________________ Authorized Signatory
ARTICLE VII
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 7.01. Consolidation, Merger or Sale of Assets Permitted. The Company
shall not consolidate with or merge with or into, or transfer or lease all or
substantially all of its assets to, any Person unless:
(1) the Person formed by or surviving any such consolidation or any merger (if
other than the Company), or to which such transfer or lease shall have been
made, is a corporation organized and existing under the laws of the United
States, any State thereof or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or merger (if other
than the Company), or to which such transfer or lease shall have been made,
expressly assumes by supplemental indenture hereto executed and delivered to the
Trustee, inform satisfactory to the Trustee, the due and punctual payment of the
principal, premium, if any, interest, if any and any Additional Amounts, with
respect to all of the Securities and the performance or observance of every
covenant under this Indenture and the Securities on the part of the Company to
be performed under the Securities, the coupons and this Indenture;
(3) immediately after giving effect to the transaction and treating any
indebtedness which becomes an obligation of the Company or a Subsidiary of the
Company as a result of such transaction as having been incurred by the Company
or such Subsidiary at the time of such transaction no Default or Event of
Default exists and is continuing; and
(4) if, as a result of any such consolidation or merger or such conveyance,
transfer or lease, properties or assets of the Company would become subject to a
mortgage, pledge, lien,
49
security interest or other encumbrance which would not be permitted by the
Securities of any series, the Company or such successor Person, as the case may
be, shall take such steps as shall be necessary effectively to secure such
Securities equally and ratably with all indebtedness secured thereby.
The Company shall deliver to the Trustee prior to the proposed transaction an
Officers' Certificate to the foregoing effect and an Opinion of Counsel stating
that the proposed transaction and such supplemental indenture comply with this
Indenture and that all conditions precedent to the consummation of the
transaction under this Indenture have been met.
In the event of the assumption by a successor corporation as provided in clause
(2) above, such successor corporation shall succeed to and be substituted for
the Company hereunder and under the Securities with the same effect as if it had
been named hereunder and thereunder and, except in the case of a lease, any
coupons appertaining thereto and all such obligations of the Company shall
terminate.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.01. 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 indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another corporation to the Company and the
assumption by any such successor of the covenants and obligations 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
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 with respect to all or any series of
Securities (and if such Events of Default are to be for the benefit of less than
all series of Securities, stating that such Events of Default are expressly
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 facilitate the issuance of Bearer Securities
(including, without limitation to provide that Bearer Securities may be
registrable as to principal only) or to facilitate the issuance of Securities in
global form; or
(5) to change or eliminate any of the provisions of this Indenture, provided
that any such change or elimination shall become effective only when there is no
Security Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision; or
(6) to establish the form or terms of Securities of any series as permitted by
Sections 2.01 and 3.01; or
50
(7) 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
(8) if allowed without penalty under applicable laws and regulations, to permit
payment in the United states (including any of the States and District of
Columbia), its territories, its possessions and other areas subject to its
jurisdiction of principal, premium, if any, or interest, if any, on Bearer
Securities or coupons, if any; or
(9) to correct or supplement any provision herein which may be inconsistent with
any other provision herein or to make any other provisions with respect to
matters or questions arising under this Indenture, provided such action shall
not adversely affect the interests of the Holders of Securities of any series;
or
(10) to cure an ambiguity or correct any mistake, provided such action shall not
adversely affect the interests of the Holders of Securities of any series.
Section 8.02. Supplemental Indentures with Consent of Holders. With the written
consent of the Holders of a majority of the aggregate principal amount of the
Outstanding Securities of each series adversely affected by such supplemental
indenture (with the Securities of each series voting as a class), the Company,
when authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto to add any provisions to or to
change or eliminate any provisions of this Indenture or of any other indenture
supplemental hereto or to modify the rights of the Holders of such Securities;
provided, however, that without the consent of the Holder of each Outstanding
Security affected thereby, a supplemental indenture under this Section may not:
(1) change the Stated Maturity of the principal of, or premium, if any, on, or
any installment of principal of or premium, if any, or interest on, or any
Additional Amounts on, any Security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable upon the redemption,
repurchase or repayment thereof, or change the manner in which the amount of any
principal thereof or premium, if any, or interest or Additional Amounts thereon
is determined or reduce the amount of the principal of any Original Issue
Discount Security or Indexed Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or
change the Place of Payment where or the currency in which any Securities or any
premium or the interest or Additional Amounts 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);
(2) reduce the percentage in principal amount of the Outstanding Securities
affected thereby, 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;
(3) change any obligation of the Company to maintain an office or agency in the
places and for the purposes specified in Section 9.02; or
51
(4) make any change in Section 5.07 or this 8.02 except to increase any
percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived with the consent of the Holders of each Outstanding
Security affected thereby.
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 is not necessary under this Section 8.02 for the Holders to consent to the
particular form of any proposed supplemental indenture, but it is sufficient if
they consent to the substance thereof.
Section 8.03. Compliance with Trust Indenture Act. Every amendment to this
Indenture or the Securities of one or more series shall be set forth in a
supplemental indenture that complies with the Trust Indenture Act as then in
effect.
Section 8.04. Execution of Supplemental Indentures. In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this
Article or the modification thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 8.05. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
Section 8.06. Reference in Securities to Supplemental Indentures. Securities,
including any coupons, 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 including any coupons 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 including any coupons of such series.
Section 8.07. Effect on Senior Indebtedness. No supplemental indenture shall
adversely affect the rights of any holder of Senior Indebtedness under Article
XII without the consent of such holder.
ARTICLE IX
COVENANTS
Section 9.01. Payment of Principal, Premium, if any, and Interest. The Company
covenants and agrees for the benefit of the Holders of each series of Securities
that it will duly and punctually pay the principal of, premium, if any, and
interest together with Additional Amounts, if any,
52
on the Securities of that series in accordance with the terms of the Securities
of such series, any coupons appertaining thereto and this Indenture. An
installment of principal, premium, if any, or interest, if any, of any
Additional Amounts shall be considered paid on the date it is due if the Trustee
or Paying Agent holds on that date money designated for and sufficient to pay
the installment.
Section 9.02. Maintenance of Office or Agency. If Securities of a series are
issued as Registered Securities, the Company will maintain in each Place of
Payment for any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company will maintain, (i) subject to any
laws or regulations applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the United States where
Securities of that series and related coupons may be presented and surrendered
for payment; provided, however, that if the Securities of that series are listed
on The International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited, the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of that series are listed on such
exchange, and (ii) subject to any laws or regulations applicable thereto, an
office or agency in a Place by Payment for that series which is located outside
the United States, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture maybe served. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified as contemplated by Section 3.01, no payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States, by check mailed to any address in
United States, by transfer to an account located in the United States or upon
presentation or surrender in the United States of a Bearer Security or coupon
for payment, even if the payment would be credited to an account located outside
the United States; provided, however, that, if the Securities of a series are
denominated and payable in Dollars, payment of principal of and any premium or
interest on any such Bearer Security shall be made at the office of the
Company's Paying Agent located within the United States, if (but only if)
payment in Dollars of the full amount of such principal, premium or interest, as
the case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices or
agencies where the Securities (including any coupons, if any) 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 an agency in each Place of Payment for
Securities (including any coupons, if any) of any series for such purposes. The
Company will 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. Unless otherwise specified as contemplated by Section 3.01, the Trustee
shall initially serve as Paying Agent.
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If and so long as the Securities of any series (i) are denominated in a currency
other than Dollars or (ii) may be payable in currency other than Dollars, or so
long as it is required under any other provision of this Indenture, then the
Company will maintain with respect to each such series of Securities or as so
required, an Exchange Rate Agent.
Section 9.03. Money for Securities Payments to be Held in Trust; Unclaimed
Money. 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, premium, if any, or interest or any Additional Amount, 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, premium, if
any, or 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
in writing 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) hold all sums held by it for the payment of the principal of, premium, if
any, or interest or Additional Amounts on Securities of that series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor
upon the Securities of that series) in the making to any payment of principal,
premium, if any, or interest or Additional Amounts on the Securities; and
(3) at any time during the continuance of any such default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and
discharge or defeasance 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 terms 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 any principal, premium or interest on any
Security of any series and remaining unclaimed for two years after such
principal, premium, if any, or interest or Additional Amount has become due and
payable shall be paid to the Company after giving not fewer than 10 days notice
to the Company or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security and coupon, if any, shall 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 The City of
New
York, or cause to be mailed to such Holder, 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.
54
Section 9.04. Corporate Existence. Subject to Article VII, the Company will at
all times do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and its rights and franchises;
provided that nothing in this Section 9.04 shall prevent the abandonment or
termination of any right or franchise of the Company if, in the opinion of the
Company, such abandonment or termination is in the best interests of the Company
and not prejudicial in any material respect to the Holders of the Securities.
Section 9.05. Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 30 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934,
as amended; or, if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then to file with the Trustee and
the Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with the rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations; and
(c) to transmit to all Holders of Securities, within 30 days after the filing
thereof with the Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any information, documents
and reports required to be filed by the Company pursuant to subsections (a) and
(b) of this Section 9.05, as may be required by rules and regulations prescribed
from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including information
concerning the Company's compliance with any of its covenants hereunder,
provided that the foregoing shall not relieve the Trustee of any of its
responsibilities hereunder.
Section 9.06. Annual Review Certificate; Notice of Defaults or Events of
Default. The Company covenants and agrees to deliver to the Trustee, within 120
of days after the end of each fiscal year of the Company ending after the date
hereof, a certificate from the principal executive officer, principal financial
officer or principal accounting officer of the Company, covering the preceding
calendar year, stating whether or not to the best knowledge of the signer(s)
thereof the Company is in default in the performance, observance or fulfillment
of or compliance with any of the terms, provisions, covenants and conditions of
this Indenture, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge. For
the purposes of this Section 9.06, compliance shall be determined without regard
to any grace period or requirement of notice provided pursuant to the terms of
this Indenture.
Section 9.07. Books of Record and Account. The Company will keep proper books of
record and account, either on a consolidated or individual basis. The Company
shall cause its books of
55
record and account to be examined either on a consolidated or individual basis,
by one or more firms of independent public accountants not less frequently than
annually. The Company shall prepare its financial statements in accordance with
GAAP.
ARTICLE X
REDEMPTION
Section 10.01. Applicability of Article. Securities (including coupons, if any)
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 10.02. Election to Redeem Notice to Trustee. The election of the Company
to redeem any Securities, including coupons, if any, shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of the
Company of less than all the Securities or coupons, if any, 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 and Redemption Price, 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 (i) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture or (ii)
pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or condition.
Section 10.03. Selection of Securities to be Redeemed. Unless otherwise
specified as contemplated by Section 3.01, if less than all the Securities
(including coupons, if any) of a series with the same terms are to be redeemed,
the Trustee, not more than 45 days prior to the redemption date, shall select
the Securities of the series to be redeemed in such manner as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of a portion of the principal amount of any Security of such series, provided
that the unredeemed portion of the principal amount of any Security shall be in
an authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. The Trustee shall make the selection from
Securities of the series that are Outstanding and that have not previously been
called for redemption and may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities, including
coupons, if any, of that series or any integral multiple thereof) of the
principal amount of Securities, including coupons, if any, of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series. The Trustee shall promptly notify the Company in writing of the
Securities selected by the Trustee for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed. If the Company shall so direct, Securities registered in the name of
the Company, any Affiliate or any Subsidiary thereof shall not be included in
the Securities selected for redemption. If less than all the Securities of any
series with differing issue dates, interest rates and stated maturities are to
be redeemed, the Company in its sole discretion shall select the particular
Securities to be redeemed and shall notify the Trustee in writing thereof at
least 45 days prior to the relevant redemption date.
For purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities (including coupons, if any)
shall relate, in the case of any Securities (including coupons, if any) redeemed
or to be redeemed only in part, to the portion of the principal amount of such
Securities (including coupons, if any) which has been or is to be redeemed.
56
Section 10.04. Notice of Redemption. Unless otherwise specified as contemplated
by Section 3.01, notice of redemption shall be given in the manner provided in
Section 1.06 not less than 30 days nor more than 60 days prior to the Redemption
Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of a series are to be redeemed,
the identification (and in the case of partial redemption, the principal
amounts) of the particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the notice which
relates to such Security shall state that on and after the Redemption Date, upon
surrender of such Security, the Holder will receive, without a charge, a new
Security or Securities of authorized denominations for the principal amount
thereof remaining unredeemed;
(5) the Place or Places of Payment where such Securities, together in the case
of Bearer Securities with all coupons appertaining thereto, if any, maturing
after the Redemption Date, are to surrendered for payment for the Redemption
Price;
(6) that Securities of the series called for redemption and all unmatured
coupons, if any, appertaining thereto must be surrendered to the Paying Agent to
collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption Price will become due and
payable upon each such Security, or the portion thereof, to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date;
(8) that the redemption is for a sinking fund, if such is the case;
(9) that unless otherwise specified in such notice, Bearer Securities of any
series, if any, surrendered for redemption must be accompanied by all coupons
maturing subsequent to the Redemption Date or the amount of any such missing
coupon or coupons will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Company, the Trustee and any Paying Agent is
furnished; and
(10) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed 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.
Section 10.05. Deposit of Redemption Price. On or prior to any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, which it may not do in the case of a
sinking fund payment under Article XI, segregate and hold in trust as provided
in Section 9.03) an amount of money in the currency or currencies (including
currency unit or units) in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.01 for the Securities of
such series) sufficient to pay on the Redemption Date the Redemption Price of,
and (unless the Redemption Date shall be an Interest Payment Date) interest
57
accrued to the Redemption Date on, all Securities or portions thereof which are
to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund payment obligation
from being satisfied by delivering and crediting Securities (including
Securities redeemed otherwise than through a sinking fund), the Company may
deliver such Securities to the Trustee for crediting against such payment
obligation in accordance with the terms of such Securities and this Indenture.
Section 10.06. 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 and the coupons for any such interest appertaining to any
Bearer Security so to be redeemed, except to the extent provided below, shall be
void. Except as provided in the next succeeding paragraph, upon surrender of any
such Security, including coupons, if any, for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest (and any Additional Amounts) to the Redemption
Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States and its
possessions (except as otherwise provided in Section 9.02) and, unless otherwise
specified as contemplated by Section 3.01, only upon presentation and surrender
to coupons for such interest; and provided, further that, unless otherwise
specified as contemplated by Section 3.01, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
3.07.
If any Bearer Security surrendered for redemption shall not be accompanied by
all appurtenant coupons maturing after the Redemption Date, such Bearer Security
may be paid after deducting from the Redemption Price an amount equal to the
face amount of all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Bearer Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest (and any Additional Amounts) represented by coupons shall be payable
only at an office or agency located outside of the United States (except as
otherwise specified pursuant to Section 9.02) and, unless otherwise provided as
contemplated by Section 3.01, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 10.07. Securities Redeemed in Part. Upon surrender of a Registered
Security that is redeemed in part at any Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
that Security, without service charge a new Registered Security or Securities of
the same series, having the same form, terms and Stated Maturity, in any
authorized denomination equal in aggregate principal amount to the unredeemed
portion of the principal amount of the Security surrendered.
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ARTICLE XI
SINKING FUNDS
Section 11.01. 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 11.02. 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 11.02. Satisfaction of Sinking Fund Payments with Securities. The
Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption) together, in the case of Bearer Securities of
such series, with all unmatured coupons appertaining thereto and (ii) may apply
as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 11.03. Redemption of Securities for Sinking Fund. Not less than 60 days
prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee an Officers' Certificate specifying 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 be
delivering and crediting Securities of that series pursuant to Section 11.02 and
will also deliver to the Trustee any Securities to be so delivered to the extent
it has not previously done so. 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 10.03 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 10.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 10.06 and 10.07.
ARTICLE XII
SUBORDINATION OF SECURITIES
Section 12.01. Agreement to Subordinate. The Company, for itself, its successors
and assigns, covenants and agrees, and each Holder of Securities, by his
acceptance thereof, likewise covenants and agrees, that the payment of the
principal of (and premium, if any), interest on and any Additional Amounts
payable in respect of each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth in this
Article XII (subject to the provisions of Article IV), in right of payment to
the prior payment in full of all Senior Indebtedness.
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Section 12.02. Distribution on Dissolution, Liquidation and Reorganization. In
the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Company or its property, (ii) any proceeding for the liquidation,
dissolution or other winding-up of the Company, voluntary or involuntary,
whether or not involving insolvency or bankruptcy proceedings, (iii) any
assignment by the Company for the benefit of creditors or (iv) any other
marshaling of the assets and liabilities of the Company then, and in any such
event specified in (i), (ii), (iii) or (iv) (each such event, if any, herein
sometimes referred to as a "Proceeding") (subject to the power of a court of
competent jurisdiction to make other equitable provision reflecting the rights
conferred in this Indenture upon the Senior Indebtedness and the holders thereof
with respect to the Securities and the Holders thereof by a lawful plan or
reorganization under applicable Bankruptcy Law,
(a) the holders of all Senior Indebtedness shall first be entitled to receive
payment in full of the principal thereof, premium, if any, any interest or any
Additional Amounts required in respect of certain taxes, and any interest
therein, due thereon or provision must first be made for such payment in cash or
cash equivalents or any other manner acceptable to the holders of such Senior
Indebtedness before any payment or distribution, whether in cash, securities or
property (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of the Company
subordinated to the payment of the Securities, such payment or distribution
being referred to as a "Junior Subordinated Payment," but excluding any payment
or distribution of securities of the Company provided for by a plan of
reorganization or readjustment authorized by an order or decree of a court of
competent jurisdiction in a reorganization proceeding under any applicable
Bankruptcy Law or of any other corporation provided for by such plan of
reorganization or readjustment which securities are subordinated in right of
payment to all then outstanding Senior Indebtedness to substantially the same
extent as the Securities are so subordinated as provided in this Article), shall
be made by the Company on account of principal, premium, interest or Additional
Amounts of or on the Securities or interest on overdue amounts thereof; and
(b) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, including any Junior
Subordinated Payment, to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article (and excluding any
payment or distribution of securities of the Company provided for by a plan of
reorganization or readjustment authorized by an order or decree of a court of
competent jurisdiction in a reorganization proceeding under any applicable
Bankruptcy Law or of any other corporation provided for by such plan of
reorganization or readjustment which securities are subordinated in right of
payment to all then outstanding Senior Indebtedness to substantially the same
extent as the Securities are so subordinated as provided in this Article) shall
be paid by the liquidating trustee or agent or other person making such payment
or distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the principal of, premium, if any, interest or Additional
Amounts required in respect of certain taxes, and any interest thereon, on the
Senior Indebtedness held or represented by each, to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or the Holders of the
Securities before all Senior Indebtedness is paid in full, then, and in such
event such payment or distribution shall be paid over to the holders of such
Senior Indebtedness or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments evidencing any of
such Senior Indebtedness may have been issued, ratably as aforesaid, for
60
application to the payment of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution to the holders of such Senior
Indebtedness. As used in this Article, the phrase "payment in full" (or any
similar phrase), when used to refer to the payment of Senior Indebtedness, shall
mean payment in full of the aggregate amount of such Senior Indebtedness then
outstanding in cash, securities or other property.
The consolidation of the Company with, or the merger of the Company with or
into, another Person or the liquidation or dissolution of the Company following
the conveyance or transfer of all or substantially all of its properties and
assets as an entirety to another Person upon the terms and conditions set forth
in Article VII shall not be deemed a Proceeding for the purposes of this Section
if the Person formed by such consolidation with or into which the Company is
merged or the Person which acquires by conveyance or transfer such properties
and assets as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article VII.
Section 12.03. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities. In the event that any Securities of a series are declared due and
payable before their Stated Maturity, then and in such event the holders of the
Senior Indebtedness outstanding at the time such Securities so became due and
payable shall be entitled to receive payment in full of all amounts due on or in
respect of such Senior Indebtedness (including any amounts due upon
acceleration), or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character, whether in cash, properties or
securities (including any Junior Subordinated Payment) by the Company on account
of the principal of, or premium, if any, or any interest or Additional Amounts
on such Securities or on account of the purchase or other acquisition of such
Securities by the Company or any Subsidiary of the Company.
In the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Security prohibited by the foregoing
provisions of this Section, then and in such event such payment shall be paid
over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect to
which Section 12.02 would be applicable.
Section 12.04. No Payment on Securities in Event of Default on Senior
Indebtedness. In the event and during the continuation of (i) a Company default
in the payment of any principal, interest, if any or premium, if any, or any
Additional Amounts on any Senior Indebtedness when the same becomes due and
payable, whether at maturity or at a date fixed for repayment or declaration or
otherwise or (ii) an event of default with respect to any Senior Indebtedness
permitting the holders thereof to accelerate the maturity thereof and written
notice of such event of default (requesting that payments on the Securities
cease) is given to the Company by the holders of Senior Indebtedness, then
unless and until such default in payment or event of default shall have been
cured or waived or shall have ceased to exist, no direct or indirect payment (in
cash, property or securities, by set-off or otherwise) shall be made or agreed
to be made on account of the Junior Subordinated Debt or interest thereon or in
respect of any repayment, redemption. retirement, purchase or other acquisition
of Junior Subordinated Debt.
In the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Security prohibited by the foregoing
provisions of this Section, and if such fact shall, at or prior to the time of
such payment, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment shall be paid over and delivered
forthwith to the Company.
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The provisions of this Section shall not apply to any payment with respect to
which Section 12.02 would be applicable.
Section 12.05. Payments on Securities Permitted. Nothing contained in this
Indenture or in any of the Securities shall (a) affect the obligation of the
Company to make, or prevent the Company from making, at any time except during
the pendency of any Proceeding referred to in Section 12.02 or under the
conditions described in Sections 12.03 and 12.04, payments of principal,
premium, interest or Additional Amounts, and any interest thereon, of or on the
Securities or (b) prevent the application by the Trustee of any moneys deposited
with it hereunder to the payment of or on account of the principal, premium,
interest or Additional Amounts, and any interest thereon, of or on the
Securities unless the Trustee shall have received at its Corporate Trust Office
written notice of any event prohibiting the making of such payment more than two
Business Days prior to the date fixed for such payment or prior to the execution
of an instrument to satisfy and discharge this Indenture based upon the deposit
of funds under Section 4.01(1)(B).
Section 12.06. Subrogation to Rights of Holders of Senior Indebtedness. Subject
to the payment in full of all amounts due or to become due on all Senior
Indebtedness, or the provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Indebtedness, the
Holders of the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to Senior
Indebtedness of the Company to substantially the same extent as the Securities
are subordinated to the Senior Indebtedness and is entitled to like rights of
subrogation by reason of any payments or distributions made to holders of such
Senior Indebtedness) to all of the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and any interest and Additional Amounts on the Securities shall
be paid in full. For purposes of such subrogation or assignment, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Indebtedness
by Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
Section 12.07. Provisions Solely to Define Relative Rights. The provisions of
this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities of any series on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in any Securities of any series
is intended to or shall (a) impair, as between the Company and the Holders of
the Securities of a series, the obligations of the Company, which are absolute
and unconditional, to pay to the Holders of the Securities the principal of,
premium, if any, and any interest and Additional Amounts on the Securities as
and when the same shall become due and payable in accordance with their terms;
or (b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than their rights in relation to
the holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture including, without limitation, filing and
voting claims in any Proceeding, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
Section 12.08. Authorization of Holders of Securities to Trustee to Effect
Subordination. Each Holder of Securities by his acceptance thereof authorizes
and directs the Trustee on his behalf to
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take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article and appoints the Trustee his attorney-
in-fact for any and all such purposes.
Section 12.09. Notices to Trustee. The Company shall give prompt written notice
to a Responsible Officer of the Trustee located at the Corporate Trust Office of
the Trustee of any fact known to the Company which would prevent the making of
any payment to or by the Trustee in respect of the Securities. Notwithstanding
the provisions of this Article or any other provisions of this Indenture,
neither the Trustee nor any Paying Agent (other than the Company) shall be
charged with knowledge of the existence of any Senior Indebtedness or of any
event which would prohibit the making of any payment of moneys to or by the
Trustee or such Paying Agent, unless and until the Trustee or such Paying Agent
shall have received (in the case of the Trustee, at its Corporate Trust Office)
written notice thereof from the Company or from the holder of any Senior
Indebtedness or from the trustee for any such holder, together with proof
satisfactory to the Trustee of such holding of Senior Indebtedness or of the
authority of such trustee; provided, however, that if at least two Business Days
prior to the date upon which by the terms hereof any such moneys may become
payable for any purpose (including, without limitation, the payment of the
principal, premium, interest or Additional Amounts, of or on any Security, or
any interest thereon) or the date on which the Trustee shall execute an
instrument acknowledging satisfaction and discharge of this Indenture, the
Trustee shall not have received with respect to such moneys or the moneys
deposited with it as a condition to such satisfaction and discharge the notice
provided for in this Section 12.09, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary, which may be
received by it on or after such two Business Days prior to such date. The
Trustee shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
on behalf of such holder) to establish that such a notice has been given by a
holder of Senior Indebtedness or a trustee on behalf of any such holder. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 12.10. Trustee as Holder of Senior Indebtedness. The Trustee shall be
entitled to all the rights set forth in this Article in respect of any Senior
Indebtedness at any time held by it to the same extent as any other holder of
Senior Indebtedness and nothing in this Indenture shall be construed to deprive
the Trustee of any of its rights as such holder.
Section 12.11. No Waiver of Subordination Provisions. No right of any present or
future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless or any knowledge
thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to such Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of such Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of
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the following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Indebtedness, or otherwise amend
or supplement in any manner Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (iii) release any Person liable in any
manner for the collection of Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Company and any other Person.
Section 12.12. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in this
Article, the Trustee, subject to the provisions of Article VI, and the Holders
of the Securities shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such Proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of the
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
Section 12.13. Trustee Not Fiduciary for Holders of Senior Indebtedness. The
Trustee, in its capacity as trustee under this Indenture, shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness and shall not be
liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
Section 12.14. Article Applicable to Paying Agents. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context otherwise requires) be construed as extending to
and including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or in
place of the Trustee.
Section 12.15. Certain Conversions or Exchanges Deemed Payment. For the purposes
of this Article only, (a) the issuance and delivery of junior securities upon
exchange of Securities shall not be deemed to constitute a payment or
distribution on account of the principal of, premium, if any, or any interest or
Additional Amounts on Securities or on account of the purchase or other
acquisition or Securities, and (b) the payment, issuance or delivery of cash,
property or securities (other than junior securities) upon exchange of a
Security shall be deemed to constitute payment on account of the principal of
such Security. For purposes of this Section, the term "junior securities" means
(i) shares of any stock of any class of the Company and (ii) securities of the
Company which are subordinated in right of payment to all Senior Indebtedness
which may be outstanding at the time of issuance or delivery of such securities
to substantially the same extent as, or to a greater extent than, Securities are
so subordinated as provided in this Article.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
METRIS COMPANIES INC.
By: /s/ Xxxxx X. Than
------------------------------------
Xxxxx X. Than
Senior Vice President, Treasurer
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
Assistant Vice President
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