Exhibit 4.2
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HASBRO, INC.
TO
[____________________]
Trustee
_______________
Subordinated Debt Securities
_________________
Subordinated Debt Indenture
Dated as of ______________, 1998
_________________
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02 Form of Documents Delivered to Trustee . . . . . . . . . 11
SECTION 1.03 Acts of Holders . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.04 Notices, Etc., to Trustee and Company . . . . . . . . . 14
SECTION 1.05 Notice to Holders; Waiver . . . . . . . . . . . . . . . 14
SECTION 1.06 Conflict with Trust Indenture Act . . . . . . . . . . . 15
SECTION 1.07 Effect of Headings and Table of Contents . . . . . . . . 15
SECTION 1.08 Successors and Assigns . . . . . . . . . . . . . . . . . 15
SECTION 1.09 Separability Clause . . . . . . . . . . . . . . . . . . 16
SECTION 1.10 Benefits of Indenture . . . . . . . . . . . . . . . . . 16
SECTION 1.11 Governing Law . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.12 Moneys of Different Currencies to Be Segregated . . . . 17
SECTION 1.13 Payment to Be in Proper Currency . . . . . . . . . . . . 17
SECTION 1.14 Counterparts . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE II
SECURITY FORMS
SECTION 2.01 Forms Generally . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.02 Form of Trustee's Certificate of Authentication . . . . 18
SECTION 2.03 Securities in Global Form . . . . . . . . . . . . . . . 18
ARTICLE III
THE SECURITIES
SECTION 3.01 Amount Unlimited; Issuable in Series . . . . . . . . . . 19
SECTION 3.02 Denominations . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.03 Execution, Authentication, Delivery and Dating . . . . . 23
SECTION 3.04 Temporary Securities . . . . . . . . . . . . . . . . . . 26
SECTION 3.05 Registration, Registration of Transfer and Exchange . . 27
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities . . . . 31
SECTION 3.07 Payment of Interest; Interest Rights Preserved . . . . . 32
SECTION 3.08 Persons Deemed Owners . . . . . . . . . . . . . . . . . 34
SECTION 3.09 Cancellation . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . . . . 35
ARTICLE IV
CONVERSION OF SECURITIES
SECTION 4.01 Applicability of Article . . . . . . . . . . . . . . . . 35
SECTION 4.02 Exercise of Conversion Privilege . . . . . . . . . . . . 35
SECTION 4.03 Fractional Interests . . . . . . . . . . . . . . . . . . 37
SECTION 4.04 Adjustment of Conversion Price . . . . . . . . . . . . . 38
SECTION 4.05 Continuation of Conversion Privilege in Case of
Merger, Consolidation or Sale of Assets . . . . . . . 43
SECTION 4.06 Notices of Certain Events . . . . . . . . . . . . . . . 44
SECTION 4.07 Taxes on Conversion . . . . . . . . . . . . . . . . . . 45
SECTION 4.08 Company to Provide Stock . . . . . . . . . . . . . . . . 45
SECTION 4.09 Disclaimer of Responsibility for Certain Matters . . . . 46
SECTION 4.10 Return of Funds Deposited for Redemption of Converted
Convertible Securities . . . . . . . . . . . . . . . . 46
ARTICLE V
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 5.01 Satisfaction and Discharge of Indenture . . . . . . . . 47
SECTION 5.02 Application of Trust Money . . . . . . . . . . . . . . . 48
SECTION 5.03 Satisfaction, Discharge and Defeasance of Securities
of Any Series . . . . . . . . . . . . . . . . . . . . 48
ARTICLE VI
REMEDIES
SECTION 6.01 Events of Default . . . . . . . . . . . . . . . . . . . 52
SECTION 6.02 Acceleration of Maturity; Rescission and Annulment . . . 54
SECTION 6.03 Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . 56
SECTION 6.04 Trustee May Enforce Claims without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 6.05 Trustee May File Proofs of Claim . . . . . . . . . . . . 57
SECTION 6.06 Application of Money Collected . . . . . . . . . . . . . 57
SECTION 6.07 Limitation on Suits . . . . . . . . . . . . . . . . . . 57
SECTION 6.08 Restoration of Rights and Remedies . . . . . . . . . . . 58
SECTION 6.09 Rights and Remedies Cumulative . . . . . . . . . . . . . 59
SECTION 6.10 Delay or Omission Not Waiver . . . . . . . . . . . . . . 59
SECTION 6.11 Control by Holders . . . . . . . . . . . . . . . . . . . 59
SECTION 6.12 Waiver of Past Defaults . . . . . . . . . . . . . . . . 59
SECTION 6.13 Waiver of Stay or Extension Laws . . . . . . . . . . . . 60
SECTION 6.14 Judgment Currency . . . . . . . . . . . . . . . . . . . 60
ARTICLE VII
THE TRUSTEE
SECTION 7.01 Certain Rights of Trustee . . . . . . . . . . . . . . . 62
SECTION 7.02 Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 7.03 May Hold Securities . . . . . . . . . . . . . . . . . . 64
SECTION 7.04 Money Held in Trust . . . . . . . . . . . . . . . . . . 64
SECTION 7.05 Compensation and Reimbursement . . . . . . . . . . . . . 64
SECTION 7.06 Resignation and Removal; Appointment of Successor . . . 65
SECTION 7.07 Acceptance of Appointment by Successor . . . . . . . . . 67
SECTION 7.08 Merger, Conversion, Consolidation or Succession to
to Business . . . . . . . . . . . . . . . . . . . . . 68
SECTION 7.09 Reports by Trustee . . . . . . . . . . . . . . . . . . . 68
SECTION 7.10 Corporate Trustee Required; Eligibility . . . . . . . . 69
ARTICLE VIII
CONSOLIDATION, MERGER OR SALE
SECTION 8.01 Consolidation, Merger or Sale . . . . . . . . . . . . . 69
SECTION 8.02 Successor Corporation to Be Substituted . . . . . . . . 70
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures without Consent of Holders . . . 71
SECTION 9.02 Supplemental Indentures with Consent of Holders . . . . 72
SECTION 9.03 Execution of Supplemental Indentures . . . . . . . . . . 74
SECTION 9.04 Effect of Supplemental Indentures . . . . . . . . . . . 75
SECTION 9.05 Conformity with Trust Indenture Act . . . . . . . . . . 75
SECTION 9.06 Reference in Securities to Supplemental Indentures . . . 75
ARTICLE X
COVENANTS
SECTION 10.01 Payment of Principal, Premium and Interest . . . . . . 75
SECTION 10.02 Maintenance of Office or Agency. . . . . . . . . . . . 76
SECTION 10.03 Money for Securities Payments to be Held in Trust . . 77
SECTION 10.04 Maintenance of Properties and Corporate Existence . . 79
SECTION 10.05 Statements as to Compliance . . . . . . . . . . . . . 79
SECTION 10.06 Commission Reports . . . . . . . . . . . . . . . . . . 80
SECTION 10.07 Additional Instruments and Acts . . . . . . . . . . . 80
SECTION 10.08 Officer's Certificate. . . . . . . . . . . . . . . . . 80
SECTION 10.09 Names and Addresses of Holders. . . . . . . . . . . . 80
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01 Applicability of Article . . . . . . . . . . . . . . . 81
SECTION 11.02 Election to Redeem; Notice to Trustee . . . . . . . . 81
SECTION 11.03 Selection by Trustee of Securities to be Redeemed . . 81
SECTION 11.04 Notice of Redemption . . . . . . . . . . . . . . . . . 82
SECTION 11.05 Deposit of Redemption Price . . . . . . . . . . . . . 83
SECTION 11.06 Securities Payable on Redemption Date . . . . . . . . 83
SECTION 11.07 Securities Redeemed in Part . . . . . . . . . . . . . 84
ARTICLE XII
SINKING FUNDS
SECTION 12.01 Applicability of Article . . . . . . . . . . . . . . 85
SECTION 12.02 Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . . 85
SECTION 12.03 Redemption of Securities for Sinking Fund . . . . . 85
ARTICLE XIII
SUBORDINATION
SECTION 13.01 Agreement to Subordinate . . . . . . . . . . . . . . 86
SECTION 13.02 Subordination to Prior Payment of All Senior
Indebtedness on Maturity, Liquidation, Dissolution
or Reorganization of Company . . . . . . . . . . . 86
SECTION 13.03 Company Not to Make Payments with Respect to
Securities in Certain Circumstances . . . . . . . 87
SECTION 13.04 Subrogation . . . . . . . . . . . . . . . . . . . . 88
SECTION 13.05 Relative Rights . . . . . . . . . . . . . . . . . . 88
SECTION 13.06 Subordination May Not be Impaired by Company . . . . 89
SECTION 13.07 Distribution or Notice to Representative . . . . . . 90
SECTION 13.08 Trustee Entitled to Assume Payments Not Prohibited
in Absence of Notice . . . . . . . . . . . . . . . 91
SECTION 13.09 Application by Trustee of Monies Deposited
with It . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 13.10 Moneys Held in Trust for Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 91
SECTION 13.11 Securityholders Authorize Trustee to Effectuate
Subordination of Securities . . . . . . . . . . . . 91
SECTION 13.12 Renewals and Extensions of Senior Indebtedness . . . . 92
SECTION 13.13 No Fiduciary Duty Created to Senior Holders . . . . 92
SECTION 13.14 Miscellaneous . . . . . . . . . . . . . . . . . . . 92
INDENTURE, dated as of _____________, 1998, between HASBRO, INC., a
corporation duly organized and existing under the laws of the State of
Rhode Island (herein called "Company"), having its principal office at
Pawtucket, Rhode Island, and [_________________], a national banking
association duly incorporated and existing under the laws of the United
States of America (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or
of series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles as in effect on June 1, 1998, except as to any
computation required or permitted pursuant to, and relating to any
covenant of the Company contained in, any Board Resolution, Officers'
Certificate or executed supplemental indenture establishing any series
of Securities, such computation shall be made and such covenant shall be
construed in accordance with generally accepted accounting principles as
are generally accepted at the date of such Board Resolution, Officers'
Certificate or executed supplemental indenture (unless otherwise
provided therein or except as otherwise provided herein or in any
further Board Resolution, Officers' Certificate or executed supplemental
indenture); 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.
Certain terms, used principally in Articles Four and Nine, are
defined in those Articles.
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.03.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authorized Newspaper" means a newspaper of general circulation in
the place of publication, printed in the official language of the country
of publication and customarily published on each Business Day, whether or
not published on Saturdays, Sundays or holidays. Whenever successive
weekly publications in an Authorized Newspaper are authorized or 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 in the form of bearer
securities established pursuant to Section 2.01 which is payable to bearer
and is not a Registered Security.
"Board of Directors" means either the Board of Directors of the
Company, the Executive Committee or any other duly authorized committee of
that Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Book-Entry Security" means a security evidencing all or part of a
series of Securities, issued to the Depositary for such series of
Securities in accordance with Section 3.03, and bearing the legend
prescribed in Section 3.03.
"Business Day," when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment are authorized
or obligated by law to close.
"Capital Lease" means any lease obligation of a Person incurred
with respect to assets acquired or leased by such Person which is required
to be capitalized in accordance with generally accepted accounting
principles. A Capital Lease shall be deemed incurred at the time a binding
commitment to lease the subject asset shall become effective.
"Capital Lease Obligation" means Indebtedness represented by
obligations under a Capital Lease.
"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 instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Common Stock" means the common stock, par value $.50 per share, of
the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman, its President, its Chief Financial Officer, or an Executive
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Conversion Agent" shall have the meaning set forth in Section
10.02.
"Conversion Price" shall have the meaning set forth in Section
4.04.
"Convertible Securities" means Securities designated as convertible
into Common Stock (in accordance with Article Four) pursuant to Section
3.01.
"Corporate Trust Office" means the office of the Trustee at which
at any particular time its corporate trust business shall be administered,
which office at the date of initial execution of this Indenture is:
"Coupon" means any interest in coupon appertaining to any Security.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in global form, including Book-Entry
Securities, the Person designated as Depositary by the Company pursuant to
Section 3.01 until a successor Depositary shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Depositary"
shall be a collective reference to such Persons. "Depositary" as used with
respect to the Debt Securities of any such series shall mean the Depositary
with respect to the Debt Securities of that series.
"Dollar" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Event of Default" has the meaning specified in Section 6.01.
"Ex-Dividend Time" means the time immediately prior to the
commencement of "ex-dividend" trading for the Common Stock on the American
Stock Exchange or such other national or regional exchange or market on
which the Common Stock is then listed or quoted.
"Extraordinary Cash Dividend" means any cash dividend with respect
to the Common Stock the amount of which, together with the aggregate amount
of cash dividends on the Common Stock to be aggregated with such cash
dividend in accordance with the provisions of this paragraph, equals or
exceeds the threshold percentages set forth below:
If, upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Common Stock, the aggregate amount of such cash
dividend together with the amounts of all cash dividends on the Common
Stock with Ex-Dividend Time occurring in the 365 consecutive day
period ending on the date prior to the Ex-Dividend Time with respect
to the cash dividend to which this provision is being applied equals
or exceeds on a per share basis 25% of the average of the Sale Prices
during the period beginning on the date after the first such Ex-
Dividend Time in such period and ending on the date prior to the Ex-
Dividend Time with respect to the cash dividend to which this is being
applied (except that if no other cash dividend has had an Ex-Dividend
Time occurring in such period, the period for calculating the average
of the Sale Prices shall be the period commencing 365 days prior to
the date prior to the Ex-Dividend Time with respect to the cash
dividend to which this provision is being applied), such cash dividend
together with each other cash dividend with an Ex-Dividend Time
occurring in such 365 day period shall be deemed to be an
Extraordinary Cash Dividend. In determining the amount of
Extraordinary Cash Dividends for purposes of making adjustments
required by Section 4.04, no adjustment shall be made for cash
dividends for which a prior adjustment in the Conversion Rate was
previously made.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Holder" means, with respect to a Registered Security, a Person in
whose name a Security is registered in the Security Register and, with
respect to a Bearer Security (or any temporary global Security), and/or
Coupons, the bearer thereof.
"Indebtedness" means (1) any liability of any Person (a) for
borrowed money, (b) evidenced by a note, debenture or similar instrument
(including an obligation with or without recourse) issued in connection
with the acquisition (whether by way of purchase, merger, consolidation or
otherwise) of any business, real property or other assets (other than
inventory or similar property acquired in the ordinary course of business)
or (c) for the payment of money relating to a Capital Lease Obligation; (2)
any liability of others described in the preceding clause (1) which the
Person has guaranteed or which is otherwise its legal liability and (3) any
amendment, renewal, extension or refunding of any such liability.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof and shall include the terms of particular series of Securities
established as contemplated by Section 3.01.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"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,
mandatory repurchase or otherwise.
"New York Business Day" means each weekday which is not a day on
which banking institutions in New York City are authorized or obligated by
law to close.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the Vice Chairman, the President, the Chief Financial Officer
or an Executive Vice President, and by the Controller, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due an
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 6.02.
"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 cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption (a)
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities or (b) U.S.
Government Obligations or Foreign Government Securities as contemplated
by and defined in Section 5.03 in the necessary amount have been
theretofore deposited with the Trustee in trust for the Holders of such
Securities in accordance with Section 5.03; 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 has been made; and
(iii) Securities which have been paid pursuant to
Section 3.06 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of any Original Issue Discount Securities that shall be
deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.02, the principal amount of a Security denominated in
a Foreign Currency or Currencies shall be deemed to be that amount of
Dollars that could be obtained for such principal amount on the basis of
the spot rate of exchange for such Foreign Currency or such currency unit
as determined by the Company or by an authorized exchange rate agent, and
Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
a Responsible Officer of the Trustee 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 (and premium, if any) or interest on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if
any) and interest on the Securities of that series are payable as specified
as contemplated by Section 3.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.06 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"Preferred Stock," as applied to the capital stock of any
corporation, means stock of any class or classes (however designated) which
is preferred as to the payment of dividends, or as to the distribution of
assets on any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of stock of any other class of such corporation.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form of Registered
Securities established pursuant to Section 2.01 which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 3.01.
"Required Currency" has the meaning specified in Section 1.13.
"Responsible Officer," when used with respect to the Trustee, means
any officer in the corporate trust administration division of the Trustee
or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Senior Holder" means any holder of Senior Indebtedness.
"Senior Indebtedness" means the principal of and premium, if any,
and interest (whether accruing before or after filing of any petition in
bankruptcy or any similar proceeding by or against the Company) on any
Indebtedness of the Company, whether outstanding on the date hereof or
thereafter incurred, assumed or guaranteed; excluding, however, (i) the
Subordinated Securities; and (ii) any Indebtedness of the Company which,
by its terms or the terms of the instrument creating or evidencing it, is
subordinate in right of payment to or pari passu with the Subordinated
Securities.
"Senior Indebtedness Default" means any default in the payment of
the principal of or sinking fund installments, if any, due with respect to,
fees in respect of or interest on, any Senior Indebtedness.
"Senior Securities" means Securities designated as Senior
Securities by the Board of Directors pursuant to Section 3.01.
"Significant Subsidiary" shall have the meaning ascribed to such
term in Rule 1-02 of Regulation S-X of the Commission, as in effect on June
1, 1998.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which the Company, or the
Company and one or more Subsidiaries, or any one or more Subsidiaries,
directly or indirectly own a majority (by number of votes) of the
outstanding voting securities having voting power to elect a majority of
the directors of such corporation.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each person who is then a
Trustee hereunder and, if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean
the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed,
except as provided in Section 9.05.
"Vice President," when used with respect to the Company, means any
vice president, whether or not designated by a number or a word or words
added before or after the title "vice president."
"Voting Stock" means stock of the class or classes of any
corporation having general voting power under ordinary circumstances to
elect at least a majority of the board of directors, managers or trustees
of such corporation (irrespective of whether or not at the time stock of
any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency).
SECTION 1.02 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.03 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 principal amount and serial numbers of Bearer
Securities held by any Person, and the date of his holding the same, may be
proved by the production of such Bearer Securities or by a certificate
executed by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer 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 (1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, (2) such Bearer Security
is produced to the Trustee by some other Person, (3) such Bearer Security
is surrendered in exchange for a Registered Security or (4) such Bearer
Security is no longer Outstanding.
(d) The fact and date of execution of any such instrument or
writing pursuant to clause (c) above, the authority of the Person executing
the same and the principal amount and serial numbers of Bearer Securities
held by the Person so executing such instrument or writing and the date of
holding the same may also be proved in any other manner which the Trustee
deems sufficient; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this clause.
(e) The ownership of Registered Securities shall be proved by
the Security Register.
(f) 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.
(g) Whenever for purposes of any Act to be taken hereunder by
the Holders of a series of Securities denominated in a Foreign Currency (or
any currency unit), the principal amount of Securities is required to be
determined, the aggregate principal amount of such Securities shall be
deemed to be that amount of Dollars that could be obtained for such
principal amount on the basis of the spot rate of exchange for such Foreign
Currency or such currency unit as determined by the Company or by an
authorized exchange rate agent and evidenced to the Trustee by an Officers'
Certificate as of the date taking of such Act by the Holders of the
requisite percentage in principal amount of the Securities is evidenced to
the Trustee. An exchange rate agent may be authorized in advance or from
time to time by the Company, and may be the Trustee or its Affiliate. Any
such determination by the Company or by any such exchange rate agent shall
be conclusive and binding on all Holders, the Company and the Trustee, and
neither the Company nor any such exchange rate agent shall be liable
therefor in the absence of bad faith. The Trustee, unless it is serving as
exchange rate agent, shall have no duty to determine or confirm such
calculation, and may conclusively rely on the aforementioned Officers'
Certificate.
(h) If the Company shall solicit from the Holders 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 entitled to
give such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do so. If
such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other 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.
SECTION 1.04 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,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxx 00000 or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.05 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
(i) if any of the Securities affected by such event are Registered
Securities, such notice to the Holders thereof shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, at such Holder's address as it appears in the
Security 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 the
Borough of Manhattan, the City of New York, New York, and in such other
city or cities, if any, as may be specified in such Securities and, if the
Securities of such series are listed on any stock exchange outside the
United States, in any place at which such Securities are listed on a
securities exchange to the extent that such securities exchange so
requires, and mailed to such Persons whose names and addresses were
previously filed with the Trustee, within the time prescribed for giving
such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. 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.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice 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.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent
of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 1.06 Conflict with Trust Indenture Act.
This Indenture is subject to the Trust Indenture Act and if any
provision hereof limits, qualifies or conflicts with the Trust Indenture
Act, the Trust Indenture Act shall control.
SECTION 1.07 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.08 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 Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.10 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.
SECTION 1.11 Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 1.12 Moneys of Different Currencies to Be Segregated.
The Trustee shall segregate moneys, funds, and accounts held by the
Trustee hereunder in one currency (or unit thereof) from any moneys, funds
or accounts in any other currencies (or units thereof), notwithstanding any
provision herein which would otherwise permit the Trustee to commingle such
amounts.
SECTION 1.13 Payment to Be in Proper Currency.
The following provisions of this Section 1.13 shall apply to the
extent permitted by applicable law: In the case of any Security payable in
any particular currency or currency unit (the "Required Currency"), except
as otherwise provided herein, therein or in or pursuant to the related
Board Resolution or supplemental indenture or as contemplated by Section
3.01, the obligation of the Company to make any payment of principal,
premium or interest thereon shall not be discharged or satisfied by any
tender by the Company, or recovery by the Trustee, in any currency or
currency unit other than the Required Currency, except to the extent that
such tender or recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any such tender
or recovery is made in other than the Required Currency, the Trustee may,
but shall not be obligated to, take such actions as it considers
appropriate to exchange such other currency or currency unit for the
Required Currency. The costs and risks of any such exchange, including
without limitation the risks of delay and exchange rate fluctuation, shall
be borne by the Company, the Company shall remain fully liable for any
shortfall or delinquency in the full amount of the Required Currency then
due and payable and in no circumstances shall the Trustee be liable
therefor. The Company hereby waives any defense of payment based upon any
such tender or recovery which is not in the Required Currency, or which,
when exchanged for the Required Currency by the Trustee, is less than the
full amount of Required Currency then due and payable.
SECTION 1.14 Counterparts.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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 pursuant to Section 3.01 by or pursuant to one or more Board
Resolutions or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of
any securities exchange or as may, consistently herewith, be determined by
the officers executing such Securities and Coupons, if any, as evidenced by
their execution of the Securities and Coupons, if any. If temporary
Securities of any series are issued in global form 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 any Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 3.03 for the authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in
any other manner, all as determined by the officers executing such
Securities 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.
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[____________________________]
as Trustee
By:__________________________
Authorized Signatory
SECTION 2.03 Securities in Global Form.
If Securities of a series are issuable in whole or in part in
global form, any such Security may provide that it shall represent the
aggregate or specified amount of Outstanding Securities from time to time
endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be reduced
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. Any instructions by the Company with respect to a Security in
global form shall be in writing but need not comply with Section 3.14(c) of
the Trust Indenture Act.
ARTICLE III
THE SECURITIES
SECTION 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06 or
11.07);
(3) whether the Securities are convertible into Common Stock
or cash in lieu thereof, and, if so, the terms and conditions upon which
such conversion will be effected, including the initial conversion price
or conversion rate and other conversion provisions;
(4) the date or dates on which the principal (and premium, if
any) of the Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date for the interest payable on any
Interest Payment Date, and/or the method by which rate or rates or date
or dates shall be determined;
(6) the Person to whom any interest on any Registered
Securities of the series shall be payable if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest and the manner in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be payable if otherwise than
upon presentation and surrender of the Coupons appertaining thereto as
they severally mature;
(7) the place or places where the principal of (and premium,
if any) and interest on the Securities of the series shall be payable
and the place or places where the Securities of the series may be
presented for transfer and, if applicable, conversion;
(8) the period or periods within which or the date or dates
on which, the price or prices at which and the terms and conditions upon
which Securities of the series may be redeemed, in whole or in part, at
the option of the Company, pursuant to any sinking fund or otherwise;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities or $5,000 and any
integral multiple thereof in the case of Bearer Securities, the
denominations in which Securities of the series shall be issuable;
(11) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.02;
(12) whether Securities of the series will be issuable as
Registered Securities, Bearer Securities or both, and the terms upon
which Bearer Securities of the series may be exchanged for Registered
Securities of the series;
(13) 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 original issuance of the
first Security of the series to be issued;
(14) if Bearer Securities of the series are to be issuable,
whether interest in respect of any portion of a temporary Bearer
Security in global form (representing all of the Outstanding Bearer
Securities of the series) payable in respect of any Interest Payment
Date prior to the exchange of such temporary Bearer Security for
definitive Securities of the series shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(15) the currency of denomination of the Securities of any
series which may be in Dollars, any Foreign Currency or any composite
currency, including but not limited to the ECU, and, if such currency of
denomination is a composite currency other than the ECU, the agency or
organization, if any, responsible for overseeing such composite
currency;
(16) the currency or currencies in which payment of the
principal of (and premium, if any) and interest on the Securities will
be made, and the currency or currencies (in addition to Dollars), if
any, in which payment of the principal of (and premium, if any) or the
interest on Registered Securities, at the election of each of the
Holders thereof, may also be payable;
(17) if the amount of payments of principal of (and premium,
if any) or interest on the Securities of the series may be determined
with reference to an index based on a currency or currencies other than
that in which the Securities are denominated or designated to be
payable, the manner in which such amounts shall be determined;
(18) if the payments of principal of (and premium, if any) or
the interest on the Securities of the series are to be made in a Foreign
Currency other than the Foreign Currency in which such Securities are
denominated, the manner in which the exchange rate with respect to such
payments shall be determined;
(19) any deletions from, modifications of or additions to the
Events of Default set forth in Section 6.01 or covenants of the Company
set forth in Articles Eight or Ten pertaining to the Securities of the
series;
(20) the form of the Securities and Coupons, if any, of the
series;
(21) whether the Securities of such series shall be issued in
whole or in part in global form, including Book-Entry Securities, and
the Depositary for such global Securities;
(22) the application, if any, of Section 5.03; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities (including Coupons, if any) of any one series shall
be substantially identical except as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers' Certificate or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 3.02 Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 3.01. In
the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof in the case of Registered
Securities or in denominations of $5,000 and any integral multiple thereof
in the case of Bearer Securities.
SECTION 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman, its President, its Chief
Financial Officer or one of its Executive Vice Presidents, under its
corporate seal reproduced thereon attested by the signature of its
Secretary or one of its Assistant Secretaries or its Treasurer or one of
its Assistant Treasurers. The Coupons, if any, shall be executed on behalf
of the Company by its Chairman of the Board, its Vice Chairman, its
President, its Chief Financial Officer or one of its Executive Vice
Presidents attested by its Secretary or any Assistant Secretary or its
Treasurer or one of its Assistant Treasurers. The signature of any of
these officers on the Securities (and Coupons, if any) may be manual or
facsimile.
Securities (and Coupons, if any) 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 (and Coupons, if any) or did not hold such
offices at the date of such Securities (and Coupons, if any).
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities (with or without
Coupons) of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or
terms of the Securities of the series have been established in or pursuant
to one or more Board Resolutions as permitted by Sections 2.01 and 3.01, in
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that:
(a) if established pursuant to a Board Resolution as
permitted by Section 2.01, the form of such Securities and Coupons, if
any, have been established in conformity with the provisions of this
Indenture;
(b) if established pursuant to a Board Resolution as
permitted by Section 3.01, the terms of such Securities and Coupons, if
any, have been established in conformity with the provisions of this
Indenture; and
(c) such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles.
The Trustee shall have the right to decline to authenticate and
deliver such Securities if the Trustee, being advised by counsel,
determines that such action way not lawfully be taken or if the Trustee in
good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees and/or Responsible Officers shall
determine that such action would expose the Trustee to personal liability
to existing Holders or would adversely affect the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency (or unit including a coin or currency)
other than that of the United States of America if the Trustee reasonably
determines that such Securities impose duties or obligations on the Trustee
which the Trustee is not able or reasonably willing to accept; provided
that the Trustee, upon a Company Request, will resign as Trustee with
respect to Securities of any series as to which such a determination is
made, prior to the issuance of such Securities, and will comply with the
request of the Company to execute and deliver a supplemental indenture
appointing a successor Trustee pursuant to Section 9.01.
If all of the Securities of a series are not to be originally
issued at the same time, then the documents required to be delivered
pursuant to this Section 3.03 must be delivered only once, prior to the
authentication and delivery of the first Security of such series; provided,
however, that any subsequent request by the Company to the Trustee to
authenticate Securities of such series upon original issuance shall
constitute a representation and warranty by the Company that, as of the
date of such request, the statements made in the Opinion of Counsel
delivered pursuant to this Section 3.03 shall be true and correct as if
made on such date.
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 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 represented by such global Security or Securities, (ii) shall be
registered, if in registered form, in the name of the Depositary for such
Book-Entry Security or Securities or the nominee of such Depositary, (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part
for Securities in certificated form, this Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a success Depositary
or a nominee of such successor Depositary" or to such other effect as the
Depositary and the Trustee may agree.
Each Depositary designated pursuant to Section 3.01 for a Book-
Entry Security in registered form must, at the time of its designation and
at all times while it serves as Depositary, be a clearing agency registered
under the Securities Exchange Act of 1934 and any other applicable statute
or regulation. The Trustee shall have no responsibility to determine if
the Depositary is so registered. Each Depositary shall enter into an
agreement with the Trustee governing their respective duties and rights
with regard to Book-Entry Securities.
Each Security shall be dated the date of its authentication, except
that each Bearer Security, including any Bearer Security in global form,
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
benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee
by manual signature of one of its authorized signatories, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of 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 cancelled.
SECTION 3.04 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor 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. Every
temporary Security of any series shall be executed by the Company and
authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities of such
series.
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 the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of
such series at the office or agency of the Company pursuant to Section
10.02 in a Place of Payment for such 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 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 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 with respect to the payment of interest on
Bearer Securities in temporary form.
SECTION 3.05 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee, for each series of Securities issuable as Registered
Securities, a register (the register maintained in such office and in any
other office or agency of the Company maintained pursuant to Section 10.02
in a Place of Payment being herein sometimes collectively referred to as
the "Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Registered Securities of such series and of transfers of Registered
Securities of such series. The Trustee is hereby appointed "Security
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 10.02 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.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in certificated
form, 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
Depositary for such series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary
or by such Depositary or any such nominee to a successor Depositary for
such series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as
Depositary for the Securities of such series or if at any time the
Depositary for the Securities of such series shall no longer be eligible
under Section 3.03, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If a successor Depositary for
the Securities of such series is not appointed by the Company within 90
days after the issuer receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 3.01(21) 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 in
certificated form in an aggregate principal amount equal to the principal
amount of the Security or Securities in global form representing such
series in exchange for such Security or Securities in global form.
Within fourteen days after the occurrence of an Event of Default
specified in clause (1), (2) or (3) of Section 6.01 with respect to any
series of the Securities if so specified pursuant to Section 3.01, the
Company shall execute, and the Trustee upon receipt of a Company Order
shall authenticate and deliver, in exchange for any Security of such series
in global form, Securities of such series in certificated form in
authorized denominations for an aggregate principal amount equal to the
principal amount of such Security in global form.
The Company may at any time and in its sole discretion determine
that the Securities of any series issued in the form of one or more global
Securities shall no longer be represented by such global Security or
Securities. 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 in certificated form and in an
aggregate principal amount equal to the principal amount of the Security or
Securities in global form representing such series 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 Depositary for such series of Securities may
surrender a global Security 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 Depositary. Thereupon, the Company
shall execute, and the Trustee shall authenticate and deliver, without
service charge to the Depositary,
(i) to each Person specified by such Depositary 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 global Security; and
(ii) to such Depositary a new global Security of like
tenor in a denomination equal to the difference, if any, between the
principal amount of the surrendered global Security and the aggregate
principal amount of certificated Securities delivered to Holders
thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company shall execute and the Trustee shall authenticate
and deliver Securities in certificated form in authorized denominations.
Upon the exchange of a global Security for Securities in
certificated form, such global Security shall be cancelled by the Trustee.
Unless expressly provided with respect to the Securities of any series that
such Security may be exchanged for Bearer Securities, Securities issued in
exchange for a Book-Entry Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the
Depositary for such Book-Entry Security, 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 so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made to the Holder for any registration
of transfer or 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 of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.06
not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange of Securities of any series for a period of 15 days
before the selection of any Securities of that series selected for
redemption, or (ii) to register the transfer of or exchange of any Security
so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part, (iii) to register the
transfer of or exchange of any Security if the Holder thereof has
exercised any right to require the Company to purchase such Security, in
whole or in part, except any portion thereof not required to be so
purchased, or (iv) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security any be exchanged for a
Registered Security of that series and like tenor, provided that such
Registered Security shall be simultaneously surrendered for redemption.
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security with Coupons corresponding to the Coupons, if any, appertaining to
the surrendered Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding with Coupons
corresponding to the Coupons, if any, appertaining to the surrendered
Security.
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 Security with a destroyed, lost or stolen 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 upon its request the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding
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 10.02, 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 the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series 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 Coupons, 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.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities
or Coupons.
SECTION 3.07 Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.01, interest
on any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to
be payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series
and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of such Series at his address as
it appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
At the option of the Company, interest on Registered Securities of
any series that bear interest may be paid (i) by mailing a check to the
address of the person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer to an account maintained by the
person entitled thereto as specified in the applicable Security Register.
Notwithstanding the above, except as otherwise specified with
respect to a series of Securities in accordance with the provisions of
Section 3.01, a Holder of $10,000,000 or more in aggregate principal amount
of Securities of the same series having the same Interest Payment Date
shall be entitled to receive payments of interest by wire transfer of
immediately available funds if appropriate wire transfer instructions have
been received by the Trustee on or before the Regular Record Date
immediately preceding the applicable Interest Payment Date.
Subject to the foregoing provisions of this Section, each Security
or Coupon , if any, delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security or Coupon,
if any, shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security or Coupon.
SECTION 3.08 Persons Deemed Owners.
Prior to due presentment of a 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 (and premium, if any) and (subject to
Section 3.07) interest on 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.
SECTION 3.09 Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee for cancellation or, if surrendered to the
Trustee, promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities and Coupons so delivered shall be promptly
cancelled by the Trustee. No Securities or Coupons shall be authenticated
in lieu of or in exchange for any Securities or Coupons cancelled as
provided in this Section, except as expressly permitted by this Indenture.
All cancelled Securities and Coupons shall be destroyed by the Trustee and,
if requested by the Company, a certificate evidencing such destruction
shall be delivered to the Company.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall
be computed, based on actual days elapsed, on the basis of a 360-day year
of twelve 30-day months.
ARTICLE IV
CONVERSION OF SECURITIES
SECTION 4.01 Applicability of Article.
The provisions of this Article shall be applicable to the
Securities of any series which are convertible into Common Stock or, if so
provided in a Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Section 3.01 by or pursuant to which
the form and terms of the Securities of such series were established, cash
in lieu thereof, as provided by the terms of the Securities of such series.
SECTION 4.02 Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any
Convertible Security to be converted shall surrender such Convertible
Security to the Conversion Agent at any time during usual business hours at
its office or agency maintained for the purpose as provided in this
Indenture, accompanied by a fully executed written notice, in substantially
the form set forth on the reverse of the Convertible Security, that the
Holder elects to convert such Convertible Security or a stated portion
thereof constituting a multiple of $1,000 in principal amount, and, if
such Convertible Security is surrendered for conversion during the period
between the close of business on any record date for such Convertible
Security and the opening of business on the related Interest Payment Date
and has not been called for redemption on a redemption date within such
period (or on such interest payment date), accompanied also by payment of
an amount equal to the interest payable on such interest payment date on
the portion of the principal amount of the Convertible Security being
surrendered for conversion. Such notice shall also state the name or names
(and address) in which the certificate or certificates for shares of Common
Stock shall be issued (or to whom payment in cash in lieu of Common Stock
shall be made). Securities surrendered for conversion shall (if so
required by the Company or the Conversion Agent) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Conversion Agent duly executed by, the
Holder or his attorney duly authorized in writing. As promptly as
practicable after the receipt of such notice and the surrender of such
Convertible Security as aforesaid, the Company shall, subject to the
provisions of Section 4.07, issue and deliver at such office or agency to
such Holder, or on his written order, a certificate or certificates for the
number of full shares of Common Stock issuable on conversion of such
Convertible Security in accordance with the provisions of such Convertible
Security and cash, as provided in Section 4.03, in respect of any fraction
of a share of Common Stock otherwise issuable upon such conversion or, if
so provided in a Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Section 3.01 by or pursuant to which
the form and terms of the Convertible Securities of such series were
established, cash in lieu of shares of Comon Stock. Such conversion shall
be deemed to have been effected immediately prior to the close of business
on the date (herein called the "Date of Conversion") on which such notice
in proper form shall have been received by the Conversion Agent and such
Security shall have been surrendered as aforesaid, and the Person or
Persons in whose name or names any certificate or certificates for shares
of Common Stock shall be issuable, if any, upon such conversion shall be
deemed to have become on the Date of Conversion the holder or holders of
record of the shares represented thereby; provided, however, that any such
surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the Person or Persons in whose name or name the
certificate or certificates for such shares are to be issued, if any, as
the recordholder or holders thereof for all purposes at the opening of
business on the next succeeding day on which such stock transfer books are
open but such conversion shall nevertheless be at the Conversion Price in
effect at the close of business on the date when such Security shall have
been so surrendered with the conversion notice in proper form. In the case
of conversion of a portion, but less than all, of a Convertible Security,
the Company shall execute, and the Trustee shall authenticate and deliver
to the Holder thereof, at the expense of the Company, a Convertible
Security or Securities in the aggregate principal amount of the unconverted
portion of the Convertible Security surrendered. Except as otherwise
expressly provided in this Indenture, no payment or adjustment shall be
made for interest accrued on any Convertible Security (or portion thereof)
converted or for dividends or distributions on any Common Stock issued upon
conversion of any Convertible Security. The right, if any, of a Holder of
any Convertible Security to cause the Company to redeem, purchase or repay
such Convertible Security shall terminate upon receipt by the Company of
any notice of conversion of such Convertible Security.
SECTION 4.03 Fractional Interests.
No fractions of shares or scrip representing fractions of shares
shall be issued upon conversion of Convertible Securities. If more than
one Convertible Security shall be surrendered for conversion at one time by
the same Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate
principal amount of the Convertible Securities so surrendered. If any
fraction of a share of Common Stock would, except for the provisions of
this Section 4.03, be issuable on the conversion of any Convertible
Security or Securities, the Company shall make payment in lieu thereof in
cash equal to the value of such fraction computed on the basis of the last
sale price of one share of Common Stock regular way on the most recent
Trading Day prior to the Date of Conversion or, in case no such reported
sale takes place on such day, the average of the reported closing bid and
asked prices regular way on such day, in either case (i) as reported on the
American Stock Exchange, or (ii) if on such Trading Day the Common Stock is
not listed or admitted to trading on such exchange, on the principal
national securities exchange on which the Common Stock is listed or
admitted to trading, or (iii) if not listed or admitted to trading on any
national securities exchange on such Trading Day, then as reported through
the National Association of Securities Dealers, Inc. on its NASDAQ National
Market System or NASDAQ System or a similar organization if NASDAQ is no
longer reporting information, or (iv) if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted on such
National Market System or NASDAQ System on such Trading Day, then the
average of the closing bid and asked prices in the over-the-counter market
as furnished by any New York Stock Exchange member firm selected from time
to time by the Company for that purpose or (v) if not quoted by any such
organization on such Trading Day, the fair value of such Common Stock on
such Trading Day, as determined by the Board of Directors. The term
"Trading Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not traded on any of the
above mentioned exchanges or in such markets.
SECTION 4.04 Adjustment of Conversion Price.
The conversion price (herein called the "Conversion Price") for a
series of Convertible Securities shall be set forth in a Board Resolution,
Officers' Certificate or executed supplemental indenture referred to in
Section 3.01 by or pursuant to which the form and terms of the Convertible
Securities of such series were established, and shall be subject to
adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend or make a
distribution in shares of Common Stock on the Common Stock, (2) subdivide
its outstanding shares of Common Stock into a greater number of shares,
(3) combine its outstanding shares of Common Stock into a smaller number of
shares or (4) issue by reclassification of its Common Stock any shares of
capital stock of the Company, the Conversion Price in effect immediately
prior to such action shall be adjusted so that the Holder of any
Convertible Security thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock or other capital
stock of the Company which he would have owned immediately following such
action had such Convertible Security been converted immediately prior
thereto. An adjustment made pursuant to this subsection (a) shall become
effective immediately, except as provided in subsection (e) below, after
the record date in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a
subdivision, combination or reclassification. If as a result of an
adjustment made pursuant to this subsection (a), the Holder of any Security
thereafter surrendered for conversion shall become entitled to receive
shares of two or more classes of capital stock (including shares of Common
Stock and other capital stock) of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a
statement filed with the Trustee) shall determine the allocation of the
adjusted Conversion Price between or among shares of such class of capital
stock or shares of Common Stock and other capital stock.
(b) In case the Company shall issue rights or warrants to all
holders of Common Stock entitling them (for a period not exceeding 45 days
from the date of such issuance) to subscribe for or purchase shares of
Common Stock at a price per share less than the current market price per
share (as determined pursuant to subsection (d) below) of the Common Stock
on the record date mentioned below, the Conversion Price shall be adjusted
to a price, computed to the nearest cent, so that the same shall equal the
price determined by multiplying:
(1) the Conversion Price in effect immediately prior to the
date of issuance of such rights or warrants by a fraction, of which
(2) the numerator shall be (A) the number of shares of
Common Stock outstanding on the date of issuance of such rights or
warrants, immediately prior to such issuance, plus (B) the number of
shares which the aggregate offering price of the total number of
shares so offered for subscription or purchase would purchase at such
current market price (determined by multiplying such total number of
shares by the exercise price of such rights or warrants and dividing
the product so obtained by such current market price), and of which
(3) the denominator shall be (A) the number of shares of
Common Stock outstanding on the date of issuance of such rights or
warrants, immediately prior to such issuance, plus (B) the number of
additional shares of Common Stock which are so offered for
subscription or purchase.
Such adjustment shall become effective immediately, except as provided in
subsection (e) below, after the record date for the determination of
holders entitled to receive such rights or warrants.
(c) In case the Company shall distribute to substantially all
holders of Common Stock, evidences of indebtedness, equity securities
(including equity interests in the Company's Subsidiaries) other than
Common Stock, or other assets (other than cash dividends paid out of
surplus of the Company or current net earnings as shown on the books of the
Company unless such cash dividends are Extraordinary Cash Dividends), or
shall distribute to substantially all holders of Common Stock rights or
warrants to subscribe for securities (other than those referred to in
subsection (b) above) then in each such case the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying
the Conversion Price in effect immediately prior to the date of such
distribution by a fraction of which the numerator shall be the current
market price per share (determined as provided in subsection (d) below) of
the Common Stock on the record date mentioned below less the then fair
market value (as determined by the Board of Directors, whose determination
shall, if made in good faith, be conclusive evidence of such fair market
value) of the portion of the assets so distributed or of such subscription
rights or warrants applicable to one share of Common Stock, and of which
the denominator shall be such current market price per share of the Common
Stock. Such adjustment shall become effective immediately, except as
provided in subsection (e) below, after the record date for the
determination of stockholders entitled to receive such distribution.
Notwithstanding the foregoing, with respect to the rights ("Rights")
distributed under the Rights Agreement, dated as of June 4, 1989, between
the Company and BankBoston, N.A. and/or in the event that and each time
that the Company shall distribute any other rights or warrants (other than
those referred to in paragraph (b) of this Section) ("Additional Rights")
pro rata to holders of Common Stock, the Company shall make proper
provision so that each Holder of a Convertible Security who converts such
Convertible Security (or any portion thereof) (A) after the date hereof in
the case of Rights and (B) after the record date for any such distribution
in the case of Additional Rights, and prior to the expiration or redemption
of the Rights or Additional Rights, as the case may be, shall be entitled
to receive upon such conversion, in addition to the shares of Common Stock
issuable upon such conversion (the "Conversion Shares"), a number of Rights
or Additional Rights, to be determined as follows: (i) if such conversion
occurs on or prior to the date for the distribution to the holders of
Rights or Additional Rights of separate certificates evidencing such Rights
or Additional Rights (the "Distribution Date"), the same number of Rights
or Additional Rights to which a holder of a number of shares of Common
Stock equal to the number of Conversion Shares is entitled at the time of
such conversion in accordance with the terms and provisions of and
applicable to the Rights or Additional Rights; and (ii) if such conversion
occurs after the Distribution Date, the same number of Rights or Additional
Rights to which a holder of the number of shares of Common Stock into which
the principal amount of the Security so converted was convertible
immediately prior to the Distribution Date would have been entitled on the
Distribution Date in accordance with the term and provisions of and
applicable to the Rights or Additional Rights.
In the event that, with respect to any distribution to which this
paragraph (c) would otherwise apply, the fair market value of the portion
of the assets so distributed applicable to one share of common stock
exceeds the current market price per share of Common Stock or the current
market price per share of Common Stock exceeds such fair market value by
less than $1.00, then the adjustment provided by this paragraph (c) shall
not be made and in lieu thereof the provision of paragraph (h) shall apply
to such distribution.
(d) If the Company shall, by dividend or otherwise,
distribute generally to holders of its Common Stock cash (excluding any
cash that is distributed upon a merger or consolidation to which Section
4.05 applies) in an aggregate amount such that such dividend or
distribution shall constitute an Extraordinary Cash Dividend, then, and in
each such case, immediately after the close of business on such date for
determination, the Conversion Price shall be reduced so that the same shall
equal the price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the date fixed for
determination of the stockholders entitled to receive such distribution by
a fraction, of which
(1) the numerator shall be equal to (A) the current market
price per share (determined as provided in paragraph (e) of this
Section) of the Common Stock on the date fixed for such determination
less (B) an amount equal to the excess of such Extraordinary Cash
Dividend over four times the per share amount of the Company's most
recently declared regular quarterly dividend and of which
(2) the denominator shall be equal to such market price per
share.
(e) For the purpose of any computation under subsections (b),
(c) and (d) above, the current market price per share of Common Stock on
any date shall be deemed to be the average of the Last Sale Prices for the
20 consecutive Trading Days commencing 30 Trading Days before the date in
question.
(f) In any case in which this Section 4.04 shall require that
an adjustment be made immediately following a record date, the Company may
elect to defer the effectiveness of such adjustment (but in no event until
a date later than the effective time of the event giving rise to such
adjustment), in which case the Company shall, with respect to any
Convertible Security converted after such record date and before such
adjustment shall have become effective, (i) defer paying any cash payment
pursuant to Section 4.03 or issuing to the Holder of such Convertible
Security the number of shares of Common Stock and other capital stock of
the Company issuable upon such conversion in excess of the number of shares
of Common Stock and other capital stock of the Company issuable thereupon
only on the basis of the Conversion Price prior to adjustment and (ii), not
later than five Business Days after such adjustment shall have become
effective, pay to such Holder the appropriate cash payment pursuant to
Section 4.03 and issue to such Holder the additional shares of Common Stock
and other capital stock of the Company issuable on such conversion.
(g) No adjustment of the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1%
of the Conversion Price; provided, however, that any adjustments which by
reason of this subsection (g) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment; and, provided
further, that adjustment shall be required and made in accordance with the
provisions of this Article Four (other than this subsection (g)) not later
than such time as may be required in order to preserve the tax-free nature
of a distribution to the holders of Convertible Securities or Common Stock.
All calculations under this Article Four shall be made to the nearest cent
or to the nearest one-hundredth of a share, as the case may be.
(h) If the Company makes a distribution to all holders of its
Common Stock of any of its assets, or debt securities or any rights,
warrants or options to purchase securities of the Company that, but for the
provisions of paragraph (c), would otherwise result in an adjustment in the
Conversion Rate, then, from and after the record date for determining the
holders of Common Stock entitled to receive the distribution, a Holder of a
Convertible Security that converts such Convertible Security in accordance
with the provisions of this Indenture shall upon such conversion be
entitled to receive, in addition to the shares of Common Stock into which
the Convertible Security is convertible, the kind and amount of securities,
cash or other assets comprising the distribution that such Holder would
have received if such Holder had converted the Convertible Security
immediately prior to the record date for determining the holders of Common
Stock entitled to receive the distribution.
(i) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly (i) file with the Trustee and each
conversion agent an Officers' Certificate setting forth the Conversion
Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment, which certificate shall be conclusive
evidence of the correctness of such adjustment, and (ii) mail or cause to
be mailed a notice of such adjustment to each Holder of Securities at his
address as the same appears on the registry books of the Company.
Anything in this Section 4.04 to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the Conversion Price, in
addition to those required by this Section 4.04, as it in its discretion
shall determine to be advisable in order that any stock dividend,
subdivision of shares, distribution of rights or warrants to purchase stock
or securities, or distribution of other assets (other than cash dividends)
hereafter made by the Company to its stockholders shall not be taxable.
SECTION 4.05 Continuation of Conversion Privilege in Case of Merger,
Consolidation or Sale of Assets.
If the Company is a party to a transaction subject to Section 8.01
(other than a sale of all or substantially all of the assets of the Company
in a transaction in which the holders of Common Stock immediately prior to
such transaction do not receive securities, cash, or other assets of the
Company or any other Person) or a merger or binding share exchange which
reclassifies or changes its outstanding Common Stock, the Person obligated
to deliver securities, cash or other assets to holders of Common Stock
pursuant to such transaction subject to Section 8.01, merger or binding
share exchange shall enter into a supplemental indenture. If the issuer of
securities deliverable upon conversion of Convertible Securities is an
Affiliate of the successor Company, that issuer shall join in the
supplemental indenture. The supplemental indenture shall provide that the
Holder of a Convertible Security may convert it into the kind and amount of
securities, cash or other assets which such Holder would have received
immediately after the consolidation, merger, binding share exchange or
transfer if such Holder had converted the Convertible Security immediately
before the effective date of such transaction, assuming (to the extent
applicable) that such Holder (i) was not a constituent person or an
Affiliate of a constituent person to such transaction; (ii) made no
election with respect thereto; and (iii) was treated alike with the
plurality of non-electing Holders. The supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practical to the adjustments provided for in this Article Four. The
successor Company shall mail to Holders of Convertible Securities a notice
briefly describing the supplemental indenture.
If the Company enters into a sale of all or substantially all of
the assets of the Company in a transaction in which the holders of the
Common Stock immediately prior to such transaction do not receive
securities, cash, or other assets of the Company or any other Person, the
Convertible Securities shall remain convertible into the Common Stock (or
other property) which, but for such sale of assets of the Company, the
Holders of such Convertible Securities would have been entitled to upon
conversion.
If this Section 4.05 applies, neither paragraph (a) nor (b) of
Section 4.04 applies.
SECTION 4.06 Notices of Certain Events.
If
(a) the Company shall declare a dividend (or any other
distribution) payable to the holders of Common Stock otherwise than cash
dividends which are not Extraordinary Cash Dividends; or
(b) the Company shall authorize the granting to the holders
of Common Stock of rights to subscribe for or purchase any shares of stock
of any class or of any other rights; or
(c) the Company shall authorize any reclassification or
change of the Common Stock (other than a subdivision or combination of its
outstanding shares of Common Stock), or any consolidation or merger to
which the Company is a party and for which approval of any stockholders of
the Company is required, or the sale or conveyance of all or substantially
all the property or business of the Company; or
(d) there shall be authorized or ordered any voluntary or
involuntary dissolution, liquidation or winding-up of the Company, or
(e) the Company or any Subsidiary or Affiliate shall commence
a tender offer for all or a portion of the Company's outstanding shares of
Common Stock (or shall amend any such tender offer);
then, the Company shall cause to be filed at the office or agency
maintained for the purpose of conversion of the Convertible Securities as
provided in Section 10.02, and shall cause to be mailed to each Holder of
Convertible Securities, at his address as it shall appear on the Security
Register therefor, at least 20 days before the date hereinafter specified
(or the earlier of the dates hereinafter specified, in the event that more
than one date is specified), a notice stating the date on which (1) a
record is expected to be taken for the purpose of such dividend,
distribution, rights, options, warrants or tender offer or if a record is
not to be taken, the date as of which the holders of Common Stock of record
to be entitled to such dividend, distribution or rights (or in the case of
a tender offer to be entitled to tender shares of Common Stock) are to be
determined, or (2) such reclassification, change, consolidation, merger,
sale, conveyance, dissolution, liquidation or winding-up is expected to
become effective, and the date, if any is to be fixed, as of which it is
expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, change, consolidation,
merger, sale, conveyance, dissolution, liquidation, winding-up or tender
offer.
SECTION 4.07 Taxes on Conversion.
The Company will pay any and all documentary, stamp or similar
taxes payable to the United States of America or any political subdivision
or taxing authority thereof or therein in respect of the issue or delivery
of shares of Common Stock on conversion of Convertible Securities pursuant
hereto; provided, however, that the Holder shall pay any such tax which is
due because the Holder requests the shares to be issued in a name other
than the Holder's name, and the Conversion Agent may refuse to deliver the
certificates representing such Common Stock until the Person requesting
such issue or delivery has paid to the Company the amount of any such tax
or has established, to the satisfaction of the Company, that such tax has
been paid. The Company extends no protection with respect to any other
taxes imposed in connection with conversion of Convertible Securities.
SECTION 4.08 Company to Provide Stock.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares, sufficient shares to provide for the
conversion of Convertible Securities from time to time as such Convertible
Securities are presented for conversion, provided, however, that nothing
contained herein shall be construed to preclude the Company from satisfying
its obligations in respect of the conversion of Convertible Securities by
delivery of repurchased shares of Common Stock which are held in the
treasury of the Company.
If any shares of Common Stock to be reserved for the purpose of
conversion of Convertible Securities hereunder require registration with or
approval of any governmental authority under any federal or state law
before such shares may be validly issued or delivered upon conversion, then
the Company covenants that it will in good faith and as expeditiously as
possible endeavor to secure such registration or approval, as the case may
be, provided, however, that nothing in this Section 4.08 shall be deemed to
affect in any way the obligations of the Issuer to convert Convertible
Securities into Common Stock as provided in this Article Four.
Before taking any action which would cause an adjustment reducing
the Conversion Price below the then par value, if any, of the Common Stock,
the Company will take all corporate action which may, in the opinion of
counsel, be necessary in order that the Company may validly and legally
issue fully paid and non-assessable shares of Common Stock at such adjusted
Conversion Price.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Convertible Securities will upon issue be fully
paid and nonassessable by the Company and free of preemptive rights.
SECTION 4.09 Disclaimer of Responsibility for Certain Matters.
Neither the Trustee, the Conversion Agent nor any agent of either
shall at any time be under any duty or responsibility to any Holder of
Convertible Securities to determine whether any facts exist which may
require any adjustment of the Conversion Price, or with respect to the
Officers' Certificate referred to in Section 4.04(h), or with respect to
the nature or extent of any such adjustment when made, or with respect to
the method employed, herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee, the Conversion Agent
nor any agent of either shall be accountable with respect to the validity
or value (or the kind or amount) of any shares of Common Stock, or of any
securities or property (including cash), which may at any time be issued or
delivered upon the conversion of any Convertible Security; and neither the
Trustee, the Conversion Agent nor any agent of either makes any
representation with respect thereto. Neither the Trustee, the Conversion
Agent nor any agent of either shall be responsible for any failure of the
Company to issue, register the transfer of or deliver any shares of Common
Stock or stock certificates or other securities or property (including
cash) upon the surrender of any Convertible Security for the purpose of
conversion or, subject to Section 3.01, to comply with any of the covenants
of the Company contained in this Article Four.
SECTION 4.10 Return of Funds Deposited for Redemption of Converted
Convertible Securities.
Any funds which at any time shall have been deposited by the
Company or on its behalf with the Trustee or any Paying Agent for the
purpose of paying the principal of and interest, if any, on any of the
Convertible Securities and which shall not be required for such purposes
because of the conversion of such Convertible Securities, as provided in
this Article Four, shall after such conversion be repaid to the Company by
the Trustee or such Paying Agent.
ARTICLE V
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 5.01 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of any series (except as to any surviving
rights of registration of transfer or exchange of Securities of such
series, replacement of lost, stolen or mutilated Securities of such series
and conversion of Securities of such series herein expressly provided for),
and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to such series, when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all Coupons appertaining thereto (other than (i)
Coupons appertaining to Bearer Securities of such series
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) Securities of such series
and Coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06, (iii)
Coupons appertaining to Bearer Securities of such series called for
redemption and maturing after the relevant Redemption Date,
surrender of which has been waived as provided in Section 11.06 and
(iv) Securities of such series 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 10.03 have been
delivered to the Trustee for cancellation; or
(B) all such Securities and Coupons of such series not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities and Coupons of such series not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities and Coupons
of such series which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with. In addition, the Opinion of
Counsel shall be to the effect that Holders of the Securities and
Coupons, if any, of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of the Company's exercise of
its option under this Section 5.01 and will be subject to Federal income
tax in the same amount, in the same manner and at the same times as
would have been the case if such option had not been exercised and must
refer to and be based upon a ruling of the Internal Revenue Service.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 7.05 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
5.02 and the last paragraph of Section 10.03, shall survive.
SECTION 5.02 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03,
all money deposited with the Trustee pursuant to Sections 5.01 and 5.03
shall be held in trust and applied by it, in accordance with the provisions
of the Securities and Coupons, if any, and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting
as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for
whose payment such money has been deposited with the Trustee.
SECTION 5.03 Satisfaction, Discharge and Defeasance of Securities of Any
Series.
If this Section is specified, as contemplated by Section 3.01, to
be applicable to Securities and Coupons, if any, of any series, at the
Company's option, either
(a) the Company will be deemed to have been Discharged (as defined
below) from its obligations with respect to Securities and Coupons, if any,
of such series or
(b) the Company will cease to be under any obligation to comply
with any term, provision or condition set forth in (i) Article Eight and or
(ii) the terms, provisions or conditions of such series specified pursuant
to Section 3.01 (provided, however, that the Company may not cease to
comply with any obligations as to which it may not be Discharged pursuant
to the definition of "Discharged"), if, in the case of (a) and (b), with
respect to the Securities and Coupons, if any, of such series on the 91st
day after the applicable conditions set forth below in (x) and either (y)
or (z) have been satisfied:
(x)(1) the Company has paid or caused to be paid all
other sums payable with respect to the Outstanding Securities and
Coupons, if any, of such series (in addition to any required under
(y) or (z)); and
(2) the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the
satisfaction and discharge of the entire indebtedness on all
Outstanding Securities and Coupons, if any, of any such series have
been complied with; and
(y)(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as a trust fund specifically
pledged as security for, and dedicated solely to, the benefit of
the Holders of the Securities and Coupons, if any, of such series
(i) an amount (in such currency or currency unit in which the
Outstanding Securities and Coupons, if any, of such series are
payable) or (ii) U.S. Government Obligations (as defined below) or,
in the case of Securities and Coupons, if any, denominated in a
Foreign Currency, Foreign Government Securities (as defined below),
which through the payment of interest and principal in respect
thereof in accordance with their terms will provide, not later than
the due date of any payment of principal (including any premium)
and interest, if any, under the Securities and Coupons, if any, of
such series, money in an amount or (iii) a combination of (i) and
(ii) sufficient (in the opinion with respect to (ii) and (iii) of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee) to pay and discharge each installment of principal of
(including any premium), and interest, if any, on, the Outstanding
Securities and Coupons, if any, of such series on the dates such
installments of interest or principal are due;
(2)(i) no Event of Default or event (including
such deposit) which with notice or lapse of time or both would
become an Event of Default shall have occurred and be continuing on
the date of such deposit, (ii) no Event of Default as defined in
clause (5) or (6) of Section 6.01, or event which with notice or
lapse of time or both would become an Event of Default under either
such clause, shall have occurred within 90 days after the date of
such deposit and (iii) such deposit and the related intended
consequence under (a) or (b) will not result in any default or
event of default under any material indenture, agreement or other
instrument binding upon the Company or any Subsidiary or any of
their properties; and
(3) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that Holders of the
Securities and Coupons, if any, of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
the Company's exercise of its option under this Section 5.03 and
will be subject to Federal income tax in the same amount, in the
same manner and at the same times as would have been the case if
such option had not been exercised; or
(z) the Company has properly fulfilled such other means
of satisfaction and discharge as is specified, as contemplated by
Section 3.01, to be applicable to the Securities and Coupons, if
any, of such series.
Any deposits with the Trustee referred to in clause (y)(1) above
will be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee. If any Outstanding Securities and
Coupons, if any, of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any mandatary redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable
escrow trust agreement will provide therefor and the Company will make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
"Discharged" means that the Company will be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under,
the Securities and Coupons, if any, of the series as to which this Section
is specified as applicable as aforesaid and to have satisfied all the
obligations under this Indenture relating to the Securities and Coupons, if
any, of such series (and the Trustee, at the expense of the Company, will
execute proper instruments acknowledging the same), except (A) the rights
of Holders thereof to receive, from the trust fund described in clause
(y)(1) above, payments of the principal of, premium and the interest, if
any, on such Securities and Coupons, if any, when such payments are due,
(B) the Company's obligations with respect to such Securities and Coupons,
if any, under Sections 3.05 and 3.06 (insofar as applicable to Securities
of such series), Article Four (insofar as applicable to Securities of such
series), Sections 5.02, 10.02 and 10.03 (last paragraph only) and the
Company's obligations to the Trustee under Sections 7.06 and 7.07 and (C)
the rights, powers, trusts, duties and immunities of the Trustee hereunder,
will survive such discharge. The Company will reimburse the trust fund for
any loss suffered by it as a result of any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or Foreign
Government Securities, as the case may be, or any principal, premium or
interest paid on such obligations, and, subject to the provisions of
Section 7.05, will indemnify the Trustee against any claims made against
the Trustee in connection with any such loss.
"Foreign Government Securities" as used in Section 5.03 means, with
respect to Securities and Coupons, if any, of any series that are
denominated in a Foreign Currency, securities that are (i) direct
obligations of the government that issued such currency for the payment of
which obligations 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 such government (the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation of such
government) which, in either case under clauses (i) or (ii), are not
callable or redeemable at the option of the issuer thereof.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America 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 of America the timely payment of which is unconditionally guaranteed
as a full faith and credit obligation of the United States of America,
which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof, and will also include a
depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specified payment of
interest on or principal of any such U.S. Government 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 U.S. Government Obligations or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
ARTICLE VI
REMEDIES
SECTION 6.01 Events of Default.
"Event of Default," wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative
or governmental body):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 90 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by the Company in furtherance of any such action; or
(7) acceleration of Indebtedness of the Company or any
Significant Subsidiary aggregating more than $50 million so that such
Indebtedness becomes due prior to the date on which the same would
otherwise become due and payable, unless such acceleration is rescinded,
annulled or otherwise cured prior to the giving of the notice referred
to in the first paragraph of Section 6.02 with respect to the Securities
of such series; or
(8) final and nonappealable judgments or orders to pay, in
the aggregate at any one time, more than $50 million rendered by a court
of competent jurisdiction against the Company or a Significant
Subsidiary, continued for 90 days (during which execution shall not be
effectively stayed or bonded) without discharge or reduction to $50
million or less; or
(9) any other Event of Default provided with respect to
Securities of that series.
SECTION 6.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or,
if the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of
that series) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable; provided,
however, that in the case of any Event of Default specified in clause (5)
or (6) of Section 6.01, such amount shall become immediately due and
payable without any notice, declaration or other act on the part of the
Trustee or any Holder.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sum paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment 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 6.12.
No such recission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 6.03 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 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 or Coupons, if any, the whole amount then
due and payable on such Securities for principal (and premium, if any) and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on
any overdue interest, 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 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 enforce any
other proper remedy.
SECTION 6.04 Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 6.05 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee, any predecessor Trustee and the Holders allowed in any
judicial proceedings relative to the Company, its creditors or its
property.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.06 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article in
respect of the Securities of any series shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest on the Securities of such series, upon presentation of the
Securities and Coupons, if any, appertaining thereto in respect of which
moneys have been collected and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
7.05; and
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively.
SECTION 6.07 Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such 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 not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder,
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series; it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or to
seek to obtain priority or preference over any other of such Holders or
to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all of such Holders.
SECTION 6.08 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 6.09 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
SECTION 6.10 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
SECTION 6.11 Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 6.12 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect
to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any)
or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 6.13 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the 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 6.14 Judgment Currency.
The following provisions of this Section 6.14 shall apply to the
extent permissible under applicable law: Judgments in respect of any
obligations of the Company under any Securities or Coupons, if any, of any
series shall be rendered in the currency or currency unit in which such
Securities or Coupons are payable. 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 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 at the Conversion Rate (as defined below) as in
effect on the date the Company shall make payment to any person in
satisfaction of such judgment. If pursuant to any such judgment,
conversion shall be made on a date other than the date payment is made and
there shall occur a change between such Conversion Rate and the Conversion
Rate as in effect on the date of payment, the Company agrees to pay such
additional amounts (if any) as may be necessary to ensure that the amount
paid is the amount in such other currency or currency unit which, when
converted at the Conversion Rate as in effect on the date of payment or
distribution, is the amount then due hereunder or under such Security or
Coupon. Any amount due from the Company under this Section 6.14 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 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. In no event, however,
shall the Company be required to pay more in the currency or currency unit
due hereunder or under such Security or Coupon at the Conversion Rate as in
effect when payment is made than the amount of currency or currency unit
stated to be due hereunder or under such Security or Coupon.
For purposes of this Section 6.14, "Conversion Rate" shall mean the
spot rate at which in accordance with normal banking procedures the
currency or currency unit into which an amount due hereunder or under any
Security or Coupon is to be converted could be purchased with the currency
or currency unit due hereunder or under any Security or Coupon, at the
option of the Company from major banks located in New York, London or any
other principal market for such purchased currency or currency unit.
ARTICLE VII
THE TRUSTEE
SECTION 7.01 Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) in the absence of bad faith on its part, the Trustee may
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, and shall be protected in acting or refraining from
acting, upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document furnished to the
Trustee and believed by the Trustee to be genuine and to have been signed
or presented by the proper party or parties but, in the case of any such
papers or documents which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) the Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it;
(i) if an Event of Default has occurred and is continuing,
the Trustee shall exercise its rights and powers and use the same degree of
care and skill in their exercise as a prudent man would exercise in the
conduct of his own affairs;
(j) except during the continuance of an Event of Default the
Trustee need perform only those duties that are specifically set forth in
this Indenture and no others;
(k) no provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that the
Trustee shall not be liable for any error of judgment made in good faith by
a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(l) whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 7.01.
SECTION 7.02 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not
be accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION 7.03 May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar or such other agent.
SECTION 7.04 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 7.05 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder as agreed to by
the Company and the Trustee (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, 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 any claim or
liability in connection with the exercise of performance of any of its
powers or duties hereunder.
SECTION 7.06 Resignation and Removal; Appointment of Successor.
(a) The Trustee may resign at any time with respect to the
Securities of one or more series by giving 30 days written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee
required by Section 7.07 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(b) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to
the Trustee and to the Company.
(c) If at any time:
(1) the Trustee shall fail to comply with Section
3.10(b) of the Trust Indenture Act after written request therefor
by the Company or by any Holder who has been a bona fide Holder of
a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
3.10(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to all Securities, or (ii) any Holder who has
been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
(d) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Securities of one or more series: the
Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series) and shall comply with the applicable requirements of
Section 7.07. Within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series may be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee. The
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 7.07,
become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 7.07, any Holder who
has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(e) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the Securities
of any series in the manner provided in Section 1.05. Each notice shall
include the name of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
SECTION 7.07 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to any series of Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-
trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may
be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified
and eligible under the Trust Indenture Act.
SECTION 7.08 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 7.09 Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Securities pursuant to this Indenture,
the Trustee shall transmit by mail to all Holders of Securities as provided
in Trust Indenture Act Section 313(c) a brief report dated as of such May
15 if required by Trust Indenture Act Section 313(a).
SECTION 7.10 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000. If such
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of a supervising or examining authority, then for the
purposes of this Section 7.10, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth
in its more recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinbefore specified in this Article Seven.
ARTICLE VIII
CONSOLIDATION, MERGER OR SALE
SECTION 8.01 Consolidation, Merger or Sale.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into any
other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company or
its successor or successors shall be a party or parties, or shall prevent
any sale, conveyance or lease of all or substantially all the property of
the Company to any other corporation (whether or not affiliated with the
Company) authorized to acquire and operate the same; provided, however, and
the Company hereby covenants and agrees, that any such consolidation,
merger, sale, conveyance or lease shall be upon the conditions that (a) the
corporation (if other than the Company) formed by or surviving any such
consolidation or merger, or to which such sale, conveyance or lease shall
have been made, shall be a corporation organized under the laws of the
United States of America, any state thereof or the District of Columbia;
and (b) the due and punctual payment of the principal of, premium, if any
and interest, if any, on all the Securities, according to their tenor, and
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company, shall be
expressly assumed and the conversion rights, if any, shall be provided for
in accordance with Article Four, by supplemental indenture satisfactory in
form to the Trustee executed and delivered to the Trustee, by the
corporation (if other than the Company) formed by such consolidation, or
into which the Company shall have been merged, or by the corporation which
shall have acquired or leased such property.
SECTION 8.02 Successor Corporation to Be Substituted.
In case of any such consolidation, merger, sale, conveyance or
lease and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form
to the Trustee, of the due and punctual payment of the principal of and
interest, if any, on all of the Securities and the due and punctual
performance of all the covenants and conditions of this Indenture to be
performed by the Company, such successor corporation shall succeed to and
be substituted for the Company, with the same effect as if it had been
named herein as the party of the first part, and the Company (including any
intervening successor to the Company which shall have become the obligor
hereunder) shall be relieved of any further obligation under this Indenture
and the Securities; provided, however, that in the case of a sale, lease or
conveyance of the property of the Company (including any such intervening
successor) in connection with which there is not a plan providing for the
complete liquidation of the Company (including any such intervening
successor), the Company (including any such intervening successor) shall
continue to be liable on (i) its obligations under this Indenture and the
Securities to the extent of liability to pay the principal of and interest,
if any, on the Securities at the time, places and rate prescribed in this
Indenture and the Securities and (ii) obligations the Company may have
under a supplemental indenture pursuant to Section 4.05. Such successor
corporation thereupon may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Company and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as
though all of such Securities had been issued at the date of the execution
thereof.
In case of any such consolidation, merger, sale, conveyance or
lease such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued, as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons or to
provide for uncertificated (commonly known as "book entry") Securities
on terms satisfactory in substance to the Trustee; 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 secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 7.07(b); or
(9) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States of America
(including any of the states and the 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
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(11) to add to, delete from or revise the conditions,
limitations on the authorized amount, terms or purposes of issue,
authentication and delivery of the Securities, as herein set forth; or
(12) to make provision with respect to the conversion rights
of Holders pursuant to the requirements of Section 4.05.
SECTION 9.02 Supplemental Indentures with Consent of Holders.
With the consent of (i) the Holders of not less than a majority in
principal amount of the Outstanding Securities, or (ii) in case less than
all of the several series of Securities are affected by such addition,
change, elimination or modification, the Holders of not less than a
majority in principal amount of each series so affected by such
supplemental indenture voting as a single class, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board of Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 6.02, or change the coin or currency in which, any
Securities or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption or
repurchase (in the case of Securities of a series that are required to
be repurchased by the Company as specified pursuant to Section 3.01), on
or after the Redemption Date or the repurchase date, as applicable), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in Section
10.02, or
(4) modify any of the provisions of this Section 9.02,
Section 6.11, or Section 10.07, except to increase any such percentage
or to provide with respect to any particular series the right to
condition the effectiveness of any supplemental indenture as to that
series on the consent of the Holders of a specified percentage of the
aggregate principal amount of Outstanding Securities of such series
(which provision may be made pursuant to Section 3.01 without the
consent of any Holder) or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 7.07(b) and 9.01(8), or
(5) if applicable, make any change that adversely affects the
right to convert any Convertible Security or, except as provided in this
Indenture, decrease the conversion rate or increase the conversion price
of any Convertible Security.
For the purposes of this Section 9.02, if the Securities of any
series are issuable upon the exercise of warrants, any holder of an
unexercised and unexpired warrant with respect to such series shall not be
deemed to be a Holder of Outstanding Securities of such series in the
amount issuable upon the exercise of such warrants.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or
which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 9.06 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.
ARTICLE X
COVENANTS
SECTION 10.01 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities of that series by
delivering said principal of (and premium, if any) and interest thereon in
immediately available funds to the Paying Agent no later than 10 A.M. New
York time on the Payment Date and otherwise in accordance with the terms of
the Securities and this Indenture.
The interest on Securities with Coupons appertaining thereto shall
be payable only upon presentation and surrender of the several Coupons for
such interest installments as are evidenced thereby as they severally
mature. 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.
SECTION 10.02 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 and Coupons, if any, 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,
(A) 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 (B) subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for that series 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 may be served. The Company
will give prompt written notice to the Trustee of the location, and any
change in the location, of any such office or agency. If Securities of a
series are issuable as Convertible Securities, the Company will maintain an
office or agency where such Securities may be presented for conversion
("Conversion Agent"). 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.
No payment of principal 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 the United States, by transfer to an account
located in the United States or upon presentation or surrender in the
Unites 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 interest on any such
Bearer Security may be made at the office of the Company's Paying Agent in
the Borough of Manhattan, The City of New York, New York if (but only if)
payment in Dollars of the full amount of such principal, interest or
additional amounts, 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 recession shall in any manner relieve
the Company of its obligation to maintain an office or 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.
SECTION 10.03 Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and 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 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 (and premium, if any) or interest 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 of
any payment of principal (and premium, if any) or interest 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 of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for three years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security 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, if a Registered Security,
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.
SECTION 10.04 Maintenance of Properties and Corporate Existence.
The Company shall, and shall cause each of its Subsidiaries to, (a)
maintain its properties and assets used or useful in its business in good
working order and condition and make all necessary repairs, renewals,
replacements, additions, betterments and improvements thereto; (b) maintain
with financially sound and reputable insurers such insurance as may be
required by law and such other insurance, to such extent and against such
hazards and liabilities, as is customarily maintained by companies
similarly situated; and (c) keep books of records and accounts reflecting
all of its business affairs and transactions in accordance with sound
business practices, and reflect in its financial statements adequate
accruals and reserves, all in accordance with generally accepted accounting
principles.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises and
those of its Subsidiaries; provided, however, that the Company shall not be
required to preserve or cause to be preserved any such right or franchise
if the Board of Directors shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 10.05 Statements as to Compliance.
The Company will deliver to the Trustee, within 105 days after the
end of each fiscal year of the Company, a certificate from the principal
executive officer, principal financial officer or principal accounting
officer as to whether or not the signer knows of any default by the Company
in the performance or observance of any of the terms, provisions or
conditions hereof. If such signer knows of such a default, the certificate
shall describe the default. For purposes of this Section 10.05, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 10.06 Commission Reports.
The Company shall file with the Trustee, within 15 days after it
files them 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 by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934. So long as the
Securities remain outstanding, the Company shall cause any annual or
quarterly or other financial reports furnished by it to shareholders to be
mailed to the Holders at their addresses appearing in the Security
Register.
SECTION 10.07 Additional Instruments and Acts.
Upon request by the Trustee, the Company will execute and deliver
such additional instruments and take such action as may be reasonably
necessary or proper to carry out more fully the purposes of this Indenture.
SECTION 10.08 Officer's Certificate.
The Company will deliver to the Trustee prior to May 1 in each year
an Officer's certificate complying with Section 314(a)(4) of the Trust
Indenture Act.
SECTION 10.09 Names and Addresses of Holders.
The Company shall furnish of cause to be furnished to the Trustee
(a) not more than 15 days after each Regular Record Date as defined in
Section 1.01 but in any event not less frequently than semi-annually, a
list in such form as the Trustee may reasonably require, containing all the
information in the possession or control of the Company or any of its
Paying Agents other than the Trustee, as to the names and addresses of the
Holders of Securities to which such Regular Record Date applies as of such
Regular Record Date, and (b) at such other times as the Trustee may request
in writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished, excluding from any such list
names and addresses received by the Trustee in its capacity as Security
Registrar.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01 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 11.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities (including
Coupons, if any) shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of all or less than all of the
Securities (including Coupons, if any) of any series, the Company shall, at
least 45 days prior to the Redemption Dated fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such
series to be redeemed. In the case of any redemption of Securities
(including Coupons, if any) prior to the expiration of any restriction on
such redemption provided in the terms of such Securities and Coupons, if
any, or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction.
SECTION 11.03 Selection by Trustee of Securities to be Redeemed.
If less than all the Securities (including Coupons, if any) of any
series with the same terms are to be redeemed, the particular Securities
(including Coupons, if any) to be redeemed shall be selected not more than
60 days prior to the redemption Date by the Trustee, from the Outstanding
Securities (including Coupons, if any) of such series not previously called
for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities
(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 (including Coupons, if any) selected for redemption and, in the
case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 11.04 Notice of Redemption.
Notice of redemption shall be given not less than 15 nor more than
60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, as provided in Section 1.05.
Each such notice of redemption shall specify the Redemption Date,
the Redemption Price, the Place or Places of Payment, that the Securities
of such series are being redeemed at the option of the Company pursuant to
provisions contained in the terms of the Securities of such series or in a
supplemental indenture establishing such series, if such be the case,
together with a brief statement of the facts permitting such redemption,
that payment will be made upon presentation and surrender of the applicable
Securities, that all Coupons, if any, maturing subsequent to the date fixed
for redemption shall be void, that any interest accrued to the Redemption
Date will be paid as specified in said notice, that on and after said
Redemption Date any interest thereon or, in case of partial redemptions, on
the portions thereof to be redeemed, will cease to accrue, and, if
applicable, that on or after said Redemption Date such Securities will
cease to be convertible into Common Stock. If less than all the Securities
of any series are to be redeemed the notice of redemption shall specify the
numbers of the Securities of such series to be redeemed, and, if only
Bearer Securities of any series are to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities, the last date on
which exchanges of Bearer Securities for Registered Securities not subject
to redemption may be made. In case any Security of any series is to be
redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and
after the Redemption Date, upon surrender of such Security and any Coupons
appertaining thereto, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof and with
appropriate Coupons will be issued, or, in the case of Registered
Securities providing appropriate space for such notation, at the option of
the Holders, the Trustee, in lieu of delivering a new Security or
Securities as aforesaid, may make a notation on such Security of the
payment of the redeemed portion thereof.
Notice of redemption of Securities and Coupons, if any, to be
redeemed at the election of the Company shall be given by the Company or,
at the Company's request, by the Trustee in the name and at the expense of
the Company.
SECTION 11.05 Deposit of Redemption Price.
On or before 10 A.M. New York time on (but in the case of payments
to be made at a Place of Payment outside of the United States, its
territories, possessions and areas subject to its jurisdiction, at least
one New York Business Day before) any Redemption Date, the company shall
deposit in immediately available funds with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 10.03) an amount of money in the
relevant currency (or a sufficient number of currency units, as the case
may be) sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 11.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall cease to bear interest and, if
applicable, shall cease to be convertible into Common Stock. 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 to the Redemption Date; provided, however,
that 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 represented by Coupons shall be payable only upon presentation and
surrender of those Coupons at an office or agency located outside of the
United States except as otherwise provided pursuant to Section 9.01(9).
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 and, if applicable, such Security shall remain
convertible into common Stock until the principal of such Security shall
have been paid or duly provided for.
SECTION 11.07 Securities Redeemed in Part.
Any Security (including Coupons, if any) which is to be redeemed
only in part shall be surrendered at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities (with appropriate Coupons, if any, attached) of the
same series, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security (including Coupons, if any) so
surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.01 Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to
as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 12.02. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 12.02 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a
credit Securities of a series which have been acquired or 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 12.03 Redemption of Securities for Sinking Fund.
Not less than 45 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 by delivering and
crediting Securities of that series pursuant to Section 12.02 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 15
nor more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 11.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.04. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 11.06 and 11.07.
ARTICLE XIII
SUBORDINATION
SECTION 13.01 Agreement to Subordinate.
The Company agrees, and each Holder of a Security by accepting a
Security likewise agrees, that the payment of the indebtedness evidenced by
the Securities is subordinated, to the extent and in the manner provided in
this Article Thirteen, to the prior payment in full of all Senior
Indebtedness.
Each holder of a Security by accepting a Security further agrees
that each Senior Holder has advanced funds and may from time to time
advance additional funds in reliance upon the subordination of the
Securities to Senior Indebtedness and that the provisions of this Article
are for the benefit of the Senior Holders.
SECTION 13.02 Subordination to Prior Payment of All Senior Indebtedness
on Maturity, Liquidation, Dissolution or Reorganization
of Company.
(a) In the event of any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company or its property, or any proceeding for
the liquidation, dissolution or other winding up of the Company, voluntary
or involuntary, whether or not involving insolvency or bankruptcy
proceedings, or any assignment by the Company for the benefit of creditors,
or any other marshalling of the assets of the Company, then and in any such
event:
(i) Senior Indebtedness shall first be paid in full, or
provision made for such payment, before any payment or distribution of
any character, whether in cash, securities or other property, shall be
made on account of or applied on the Securities;
(ii) any payment or distribution of any character,
whether in cash, securities or other property, which would otherwise
(but for this clause) be payable or deliverable in respect of the
Securities shall be paid or delivered directly to the Senior Holders,
until all Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution to the Senior Holders,
or provision therefor; and
(iii) all Holders of Securities irrevocably authorize
and empower each Senior Holder (and its representatives) to demand, xxx
for, collect and receive all such payments and distributions and to
accept receipt therefor, and to file and prove all such claims and take
all such other actions in the name of all Holders of the Securities or
otherwise, as the Senior Holders may determine to be necessary or
appropriate.
(b) The Trustee and the Holders of the Securities will not
exercise or attempt to exercise any right of setoff or counterclaim in
respect of any obligations of the Holders of the Securities to the Company
against the obligations of the Company under the Securities if the effect
thereof shall be to reduce the amount of any such payment or distribution
to which the Senior Holders would be entitled in the absence of such setoff
or counterclaim.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company.
SECTION 13.03 Company Not to Make Payments with Respect to Securities
in Certain Circumstances.
In the event and during the continuation of any Senior Indebtedness
Default, no payment of principal, interest or premium, if any, shall be
made on the Securities unless and until such Senior Indebtedness Default
shall have been remedied, nor shall such payment be made if after giving
effect, as if paid, to such payment, any Senior Indebtedness Default would
exist.
SECTION 13.04 Subrogation.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the rights of the Senior
Holders to receive payments or distributions of assets of the Company made
on the Senior Indebtedness until the Securities shall be paid in full; and,
for the purposes of such subrogation, no payments or distributions to
Senior Holders of any cash, property or securities to which Holders of the
Securities would be entitled except for the provisions of this Article and
no payment over pursuant to the provisions of this Article to Senior
Holders by the Holders of the Securities, shall, as between the Company,
its creditors other than Senior Holders and the holders of the Securities,
be deemed to be a payment by the Company to or on account of Senior
Indebtedness, it being understood that the provisions of this Article are
solely for the purpose of defining the relative rights of the Senior
Holders, on the one hand, and the Holders of the Securities on the other
hand.
If any payment or distribution to which the Holders of the
Securities would otherwise have been entitled but for the provisions of
this Article shall have been applied, pursuant to the provisions of this
Article, to the payment of Senior Indebtedness, then and in such case, the
Holders of the Securities shall be entitled to receive from the Senior
Holders at the time outstanding any payments or distributions received by
such Senior Holders in excess of the amount sufficient to pay all Senior
Indebtedness in full.
SECTION 13.05 Relative Rights.
This Article is intended solely to define the relative rights of
Holders of Securities and Senior Holders. Nothing in this Indenture shall:
(a) impair, as between the Company and Holders of the
Securities, the obligation of the Company, which is absolute and
unconditional, to pay principal, interest, and premium, if any, on the
Securities in accordance with their terms; or
(b) affect the relative rights of Holders of the Securities
and creditors of the Company other than holders of Senior Indebtedness; or
(c) prevent the Trustee or any Holder of the Securities from
exercising all its available remedies hereunder or under applicable law
upon an Event of Default (including without limitation the right to take
any action to accelerate the maturity of the Securities in accordance with
Article Six, subject to the rights of Senior Holders under this Article
Thirteen to receive payments or distributions otherwise payable or
distributable to Holders of the Securities).
Upon any distribution of assets of the Company referred to in this
Article Thirteen, the Trustee, subject to the provisions of Section 7.01,
and the Holders of the Securities shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are
pending, or a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the Holders of the
Securities, for the purpose of ascertaining the persons entitled to
participate in such distribution, the Senior Holders 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 Thirteen.
If the Company fails because of this Article to pay principal of or
interest on a Security on the due date, the failure is still an Event of
Default.
SECTION 13.06 Subordination May Not be Impaired by Company.
No right of any Senior Holders to enforce the subordination of the
indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this
Indenture.
SECTION 13.07 Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to Senior
Holders pursuant to this Article Thirteen, the distribution may be made and
the notice given to their representative. If an issue of Senior
Indebtedness has a representative, all notices must be given, and all
distributions shall be made, to the representative.
SECTION 13.08 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
The Trustee or Paying Agent shall not at any time be charged with
knowledge of the evidence of any facts which would prohibit the making of
any payment to or by the Trustee or the Paying Agent to the Holders of
Securities unless and until it receives written notice that payments may
not be made under this Article; and (except as aforesaid) prior to the
receipt of any such written notice, the Trustee or the Paying Agent,
subject to the provisions of Section 7.10, shall be entitled to assume
conclusively that no such facts exist. The Company shall promptly notify
the Trustee and the Paying Agent of any facts known to the Company that
would cause a payment of principal, interest or premium, if any, on the
Securities to violate this Article. A representative of Senior Holders or
a Senior Holder may also give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee.
SECTION 13.09 Application by Trustee of Monies Deposited with It.
Money or securities deposited in trust with the Trustee pursuant to
and in accordance with Section 5.01 shall be for the sole benefit of
Securityholders and, to the extent allocated for the payment of Securities,
shall not be subject to the subordination provisions of this Article
Thirteen. Otherwise, any deposit of monies by the Company with the Trustee
or any Paying Agent (whether or not in trust) for the payment of the
principal or interest on any Securities shall be subject to the provisions
of Sections 13.01, 13.02, 13.03, 13.04 and 13.05 except that, if two
Business Days prior to the date on which by the terms of this Indenture any
such monies may become payable for any purpose (including, without
limitation, the payment of either the principal or the interest on any
Security), the Trustee shall not have received with respect to such monies
the notice provided for in Section 13.08, then the Trustee or the Paying
Agent shall have full power and authority to receive such monies 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
during or after such two Business Days. This Section shall be construed
solely for the benefit of the Trustee and Paying Agent and shall not
otherwise affect the rights of Senior Holders.
SECTION 13.10 Moneys Held in Trust for Holders of Senior Indebtedness.
In the event that any Holders of Securities shall receive any
payment or distribution with respect to the Securities from any source
whatsoever which such Holder is not at the time entitled to receive under
the provisions of this Article, such Holder will hold any amount so
received in trust for the Senior Holders and will forthwith turn over such
payment to the Senior Holders in the form received to be applied to the
payment or prepayment of Senior Indebtedness, whether or not then due and
payable.
SECTION 13.11 Securityholders Authorize Trustee to Effectuate
Subordination of Securities.
Each Holder of the Securities by his acceptance thereof authorizes
and expressly directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination provided in
this Article Thirteen and appoints the Trustee his attorney-in-fact for
such purpose.
SECTION 13.12 Renewals and Extensions of Senior Indebtedness.
The Trustee, on behalf of all initial Holders of Securities, hereby
waives, and each subsequent Holder of Securities by his acceptance of
Securities thereby waives, any and all notice of renewal, extension or
accrual of any of the Senior Indebtedness, present or future, and agrees
and consents that without notice to or assent by the Trustee or any Holder
of Securities:
(i) the obligations and liabilities or any other party
or parties for or upon the Senior Indebtedness (and/or any promissory
note(s), security document or guaranty evidencing or securing the same)
may, from time to time, in whole or in part, be renewed, extended,
modified, amended, accelerated, compromised, supplemented, terminated,
sold, exchanged, waived or released;
(ii) any representative or representatives acting on
behalf of the Senior Holders and the Senior Holders may exercise or
refrain from exercising any right, remedy or power granted by or in
connection with any agreements relating to the Senior Indebtedness; and
(iii) any balance or balances of funds with any Senior
Holder at any time outstanding to the credit of the Company may, from
time to time, in whole or in part, be surrendered or released;
all as any representative or representatives acting on behalf of the Senior
Holders and the Senior Holders may deem advisable and all without
impairing, abridging, diminishing, releasing or affecting the subordination
of the Securities to the Senior Indebtedness provided for herein.
SECTION 13.13 No Fiduciary Duty Created to Senior Holders.
The Trustee shall not be deemed to owe any fiduciary duty to the
Senior Holders by virtue of the provisions of this Article Thirteen.
SECTION 13.14 Miscellaneous.
Each Holder of Securities by his acceptance of the Securities
acknowledges and agrees that the Senior Holders have relied upon and will
continue to rely upon the subordination provided for herein in entering
into the agreements relating to Senior Indebtedness and in extending credit
to the Company pursuant thereto.
No present or future Senior Holders shall be prejudiced in his
right to enforce the subordination provisions contained herein in
accordance with the terms hereof by any act or failure to act on the part
of the Company or any Holder of Securities.
The provisions in this Article Thirteen shall be binding upon each
Holder of Securities and upon the heirs, legal representatives, successors
and assigns of each such Holder of Securities.
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.
HASBRO, INC.
By:________________________
[__________________________]
Trustee
By:________________________
