EXHIBIT 4.3
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INDENTURE
between
OCWEN FINANCIAL CORPORATION
and
NORWEST BANK MINNESOTA, N.A.
as Trustee
Dated as of _________, 199__
Providing for the Issuance of
Subordinated Debt Securities in Series
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TABLE OF CONTENTS
PAGE
ARTICLE I..................................................................1
Definitions and Other Provisions of General Application....................1
Section 1.01. Definitions........................................1
Section 1.02. Compliance Certificate and Opinions...............15
Section 1.03. Forms of Documents Delivered to Trustee...........15
Section 1.04. Acts of Holders...................................16
Section 1.05. Notices, Etc., to Trustee and Company.............19
Section 1.06. Notice to Holders; Waiver.........................19
Section 1.07. Headings and Table of Contents....................21
Section 1.08. Successors and Assigns............................21
Section 1.09. Separability......................................21
Section 1.10. Benefits of Indenture.............................21
Section 1.11. Governing Law.....................................21
Section 1.12. Legal Holidays....................................22
ARTICLE II
Security Forms...................................................22
Section 2.01. Forms Generally...................................22
Section 2.02. Form of Trustee's Certificate of
Authentication....................................23
Section 2.03. Securities in Global Form.........................23
Section 2.04. Form of Legend for Securities in Global
Form. ............................................24
ARTICLE III
The Securities...................................................24
Section 3.01. Amount Unlimited; Issuable in Series..............24
Section 3.02. Denominations.....................................29
Section 3.03. Execution, Authentication, Delivery and
Dating............................................29
Section 3.04. Temporary Securities..............................33
Section 3.05. Registration, Transfer and Exchange...............34
Section 3.06. Replacement Securities............................38
Section 3.07. Payment of Interest; Interest Rights
Preserved.........................................40
Section 3.08. Persons Deemed Owners.............................42
Section 3.09. Cancellation......................................43
Section 3.10. Computation of Interest...........................43
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Section 3.11. CUSIP Numbers.....................................43
Section 3.12. Currency and Manner of Payment in Respect of
Securities........................................44
Section 3.13. Appointment and Resignation of Exchange Rate
Agent.............................................49
ARTICLE IV
Satisfaction, Discharge and Defeasance...........................50
Section 4.01. Termination of Company's Obligations Under
the Indenture.....................................50
Section 4.02. Application of Trust Funds........................51
Section 4.03. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or
Covenant Defeasance...............................52
Section 4.04. Defeasance and Discharge..........................52
Section 4.05. Covenant Defeasance...............................53
Section 4.06. Conditions to Defeasance or Covenant
Defeasance........................................53
Section 4.07. Deposited Money and Government Obligations to
Be Held in Trust..................................56
Section 4.08. Repayment to Company..............................57
Section 4.09. Indemnity for Government Obligations..............57
Section 4.10. Reinstatement.....................................57
ARTICLE V
Defaults and Remedies............................................58
Section 5.01. Events of Default.................................58
Section 5.02. Acceleration; Rescission and Annulment............60
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee............................61
Section 5.04. Trustee May File Proofs of Claim..................62
Section 5.05. Trustee May Enforce Claims Without
Possession of Securities..........................63
Section 5.06. Delay or Omission Not Waiver......................63
Section 5.07. Waiver of Past Defaults...........................63
Section 5.08. Control by Majority...............................64
Section 5.09. Limitation on Suits by Holders....................64
Section 5.10. Rights of Holders to Receive Payment..............65
Section 5.11. Application of Money Collected....................65
Section 5.12. Restoration of Rights and Remedies................66
Section 5.13. Rights and Remedies Cumulative....................66
Section 5.14. Waiver of Usury, Stay or Extension Laws...........66
Section 5.15. Undertaking for Costs.............................67
Section 5.16. Judgment Currency.................................67
Section 6.01. Certain Duties and Responsibilities of the
Trustee...........................................68
Section 6.02. Rights of Trustee.................................68
Section 6.03. Trustee May Hold Securities.......................69
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Section 6.04. Money Held in Trust...............................70
Section 6.05. Trustee's Disclaimer..............................70
Section 6.06. Notice of Defaults................................70
Section 6.07. Reports by Trustee to Holders.....................70
Section 6.08. Securityholder Lists..............................71
Section 6.09. Compensation and Indemnity........................71
Section 6.10. Replacement of Trustee............................72
Section 6.11. Acceptance of Appointment by Successor............74
Section 6.12. Eligibility; Disqualification.....................75
Section 6.13. Merger, Conversion, Consolidation or
Succession to Business............................75
Section 6.14. Appointment of Authenticating Agent...............76
ARTICLE VII
Consolidation, Merger or Sale by the Company.....................78
Section 7.01. Consolidation, Merger or Sale of Assets
Permitted.........................................78
ARTICLE VIII
Supplemental Indentures..........................................79
Section 8.01. Supplemental Indentures Without Consent of
Holders...........................................79
Section 8.02. Supplemental Indentures with Consent of
Holders...........................................81
Section 8.03. Compliance with Trust Indenture Act...............82
Section 8.04. Execution of Supplemental Indentures..............82
Section 8.05. Effect of Supplemental Indentures.................82
Section 8.06. Reference in Securities to Supplemental
Indentures........................................83
ARTICLE IX
Covenants........................................................83
Section 9.01. Payment of Principal, Premium, if any, and
Interest..........................................83
Section 9.02. Maintenance of Office or Agency...................83
Section 9.03. Money for Securities Payments to be Held in
Trust; Unclaimed Money............................85
Section 9.04. Corporate Existence...............................86
Section 9.05. Reports by the Company............................87
Section 9.06. Annual Review Certificate; Notice of Defaults
or Events of Default..............................87
Section 9.07. Payment of Taxes and Other Claims.................87
Section 9.08. Maintenance of Properties.........................88
Section 9.09. Maintenance of Bank's Status as FDIC-Insured
Institution.......................................88
Section 9.10 Insurance.........................................88
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ARTICLE X
Redemption.......................................................88
Section 10.01. Applicability of Article..........................88
Section 10.02. Election to Redeem Notice to Trustee..............89
Section 10.03. Selection of Securities to be Redeemed............89
Section 10.04. Notice of Redemption..............................90
Section 10.05. Deposit of Redemption Price.......................91
Section 10.06. Securities Payable on Redemption Date.............91
Section 10.07. Securities Redeemed in Part.......................93
ARTICLE XI
Sinking Funds....................................................93
Section 11.01. Applicability of Article..........................93
Section 11.02. Satisfaction of Sinking Fund Payments with
Securities........................................93
Section 11.03. Redemption of Securities for Sinking
Fund..............................................94
ARTICLE XII
Subordination of Securities......................................94
Section 12.01. Agreement to Subordinate..........................94
Section 12.02. Distribution on Dissolution, Liquidation and
Reorganization....................................94
Section 12.03. Prior Payment to Senior Indebtedness Upon
Acceleration of Securities........................97
Section 12.04. No Payment on Securities in Event of Default
on Senior Indebtedness............................97
Section 12.05. Payments on Securities Permitted..................99
Section 12.06. Subrogation to Rights of Holders of Senior
Indebtedness......................................99
Section 12.07. Provisions Solely to Define Relative
Rights...........................................100
Section 12.08. Authorization of Holders of Securities to
Trustee to Effect Subordination..................100
Section 12.09. Notices to Trustee...............................100
Section 12.10. Trustee as Holder of Senior Indebtedness.........101
Section 12.11. No Waiver of Subordination Provisions............102
Section 12.12. Reliance on Judicial Order or Certificate of
Liquidating Agent................................102
Section 12.13. Trustee Not Fiduciary for Holders of Senior
Indebtedness.....................................102
Section 12.14. Article Applicable to Paying Agents..............103
Section 12.15. Certain Conversions or Exchanges Deemed
Payment..........................................103
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INDENTURE, dated as of __________, 199__ from OCWEN FINANCIAL
CORPORATION, a Florida corporation (the "Company"), to NORWEST BANK MINNESOTA,
N.A., a national banking association (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of subordinated indebtedness
("Securities") to be issued in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities or of
series thereof:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.01. Definitions. (a) For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP (as hereinafter
defined); and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by, or under direct or indirect
common control, with such specified Person. For purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. Nothwithstanding the foregoing, no Securitization Entity shall be
deemed an Affiliate of the Company.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language, customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive publications in
an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or different Authorized Newspapers.
"Bank" means Ocwen Federal Bank, FSB.
"Bearer Security" means any Security issued hereunder which is
payable to bearer.
"Board" or "Board of Directors" means the Board of Directors
of the Company or any duly authorized committee of the Board of Directors of the
Company.
"Board Resolution" means a copy of a resolution of the Board
of Directors, certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of the certificate, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.01, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
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particular location are authorized or obligated by law or executive order to
close.
"Capital Lease Obligation" of any Person means any obligations
of such Person under any capital lease for real or personal property which, in
accordance with GAAP, is required to be recorded as a capitalized lease
obligation; and, for the purpose of this Indenture, the amount of such
obligation at any date shall be the capitalized amount thereof at such date,
determined in accordance with GAAP.
"Capital Stock" in any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents or interests in (however designated) capital stock in which Person,
including, with respect to a corporation, common stock, Preferred Stock and
other corporate stock and, with respect to a partnership, partnership interests,
whether general or limited, and any rights (other than debt securities
convertible into corporate stock, partnership interests or other capital stock),
warrants or options exchangeable for or convertible into such corporate stock,
partnership interests or other capital stock.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this Indenture such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the party named as the Company in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter means
such successor.
"Company Order" or "Company Request" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President, a Managing Director or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Consolidated Tangible Net Worth" of any Person and its
Subsidiaries means as of the date of determination all amounts that would be
included under stockholders' equity on a consolidated balance sheet of such
Person and its Subsidiaries determined in accordance with GAAP less an amount
equal to the consolidated intangible assets (other than capitalized mortgage
3
servicing rights) of such Person and its Subsidiaries determined in accordance
with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the issuer of such currency and for the settlement of
transactions by a central bank or other public institutions of or within the
international banking community, (ii) the ECU both within the European Monetary
System and for the settlement of transactions by public institutions of or
within the European Communities or (iii) any currency unit other than the ECU
for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee in
which at any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at [ADDRESS].
"Currency Unit" or "currency unit" for all purposes of this
Indenture shall mean any composite currency.
"Default" means any event which is, or after notice or passage
of time, or both, would be, an Event of Default.
"Depositary" when used with respect to the Securities of or
within any series issuable or issued in whole or in part in global form, means
the Person designated as 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 shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Disqualified Capital Stock" means any Capital Stock which, by
its terms (or by the terms of any security into which it is convertible or
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part on, or prior to, or is
exchangeable for debt securities of the Company or its Subsidiaries prior to,
the final Stated Maturity of principal of the Securities; provided, however,
that only the amount of such Capital Stock that is redeemable prior to the
Stated Maturity of principal of the Securities shall be deemed to be
Disqualified Capital Stock.
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"Dollar" means the currency of the United States as at the
time of payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Rate Agent", when used with respect to Securities of
or within any series, means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, a bank designated pursuant to Section 3.01
or Section 3.13 (which may include any such bank acting as Trustee hereunder).
"Exchange Rate Officer's Certificate" means a certificate
setting forth (i) the applicable Market Exchange Rate or the applicable bid
quotation and (ii) the Dollar or Foreign Currency amounts of principal (and
premium, if any) and interest, if any (on an aggregate basis and on the basis of
a Security having the lowest denomination principal amount in the relevant
currency or currency unit), payable with respect to a Security of any series on
the basis of such Market Exchange Rate or the applicable bid quotation, signed
by the Chief Financial Officer, the Treasurer, the Controller, any Vice
President or the Assistant Treasurer of the Company.
"Foreign Currency" means any currency issued by the government
of one or more countries other than the United States or by any recognized
confederation or association of such governments.
"GAAP" means United States generally accepted accounting
principles, in effect as of the date of this Indenture, as set forth in the
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as is approved by a significant
segment of the accounting profession.
"Government Obligations" means securities which are (i) direct
obligations of the United States or, if specified as contemplated by Section
3.01, the government which issued the
5
currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States or, if specified as contemplated by Section 3.01, such
government which issued the foreign currency in which the Securities of such
series are payable, the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States or such other government,
which, in either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depositary receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depositary 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 depositary
receipt from any amount received by the custodian in respect of the Government
Obligation evidenced by such depositary receipt.
"Holder" means, with respect to a Bearer Security, a bearer
thereof or of a coupon appertaining thereto and, with respect to a Registered
Security, a person in whose name a Security is registered on the Register.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services, excluding any trade payables
and other accrued current liabilities arising in the ordinary course of
business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit issued under
letter of credit facilities, and in connection with any agreement by such Person
to purchase, redeem, exchange, convert or otherwise acquire for value any
Capital Stock of such Person now or hereafter outstanding, (ii) all obligations
of such Person evidenced by bonds, notes, debentures or other similar
instruments, (iii) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such property), but excluding trade payables arising in the ordinary course
of business, (iv) all obligations under interest rate agreements of such Person,
(v) all Capital Lease Obligations of such Person, (vi) all indebtedness referred
to in clauses (i) through (v) above of other Persons and all dividends payable
by other Persons, the
6
payment of which is secured by (or for which the holder of such indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien, upon or
with respect to property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such indebtedness (the amount of such obligations
being deemed to be the lesser of the value of such property or asset or the
amount of the obligations so secured), (vii) all guarantees by such Person of
Guaranteed Indebtedness, (viii) all Disqualified Capital Stock (valued at the
greater of book value and voluntary or involuntary maximum fixed repurchase
price plus accrued and unpaid dividends) of such Person, and (ix) any amendment,
supplement, modification, deferral, renewal, extension, refunding or refinancing
or any liability of the types referred to in clauses (i) through (viii) above.
For purposes hereof, (x) the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock as if
such Disqualified Capital Stock were purchased on any date on which indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value is to be determined in good faith by the
board of directors (or any duly authorized committee thereof) of the issuer of
such Disqualified Capital Stock, and (y) indebtedness is deemed to be incurred
pursuant to a revolving credit facility each time an advance is made thereunder.
"Indenture" means this Indenture as originally executed or as
amended or supplemented from time to time and shall include the forms and terms
of particular series of Securities established as contemplated hereunder.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section
7
3.01, (i) for any conversion involving a currency unit on the one hand and
Dollars or any Foreign Currency on the other, the exchange rate between the
relevant currency unit and Dollars or such Foreign Currency calculated by the
method specified pursuant to Section 3.01 for the Securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency, the noon
buying rate for such Foreign Currency for cable transfers quoted in New York
City as certified for customs purposes by the Federal Reserve Bank of New York
and (iii) for any conversion of one Foreign Currency into Dollars or another
Foreign Currency, the spot rate at noon local time in the relevant market at
which, in accordance with normal banking procedures, the Dollars or Foreign
Currency into which conversion is being made could be purchased with the Foreign
Currency from which conversion is being made from major banks located in New
York City, London or any other principal market for Dollars or such purchased
Foreign Currency, in each case determined by the Exchange Rate Agent. Unless
otherwise specified with respect to any Securities pursuant to Section 3.01, in
the event of the unavailability of any of the exchange rates provided for in the
foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its
sole discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or other principal market
for such currency or currency unit in question (which may include any such bank
acting as Trustee under this Indenture), or such other quotations as the
Exchange Rate Agent shall deem appropriate. If there is more than one market for
dealing in any currency or currency unit by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency or
currency unit shall be that upon which a nonresident issuer of securities
designated in such currency or currency unit would purchase such currency or
currency unit in order to make payments in respect of such securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the Vice Chairman
of the Board, the President, any Managing Director, the Treasurer, any Assistant
Treasurer any Vice President, the Secretary or any Assistant Secretary of the
Company.
"Officers' Certificate", when used with respect to the
Company, means a certificate signed by two Officers, one of whom
8
must be the Chairman of the Board, the Vice Chairman of the Board, the
President, a Managing Director, a Vice President, the Treasurer or an Assistant
Treasurer.
"Opinion of Counsel" means a written opinion from the general
or assistant general counsel of the Company or other legal counsel who is
reasonably acceptable to the Trustee. Such counsel may be an employee of or
counsel to the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.02.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount and in the required currency
or Currency Unit has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust (if the Company shall act as its own Paying Agent)
for the Holders of such Securities and any coupons appertaining
thereto, provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provisions therefor satisfactory to the Trustee have been made;
(iii) Securities, except to the extent provided in Sections
4.04, with respect to which the Company has effected defeasance as
provided in Article IV; and
(iv) Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have
9
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, or whether sufficient funds are available for redemption or for any
other purpose and for the purpose of making the calculations required by Section
313 of the Trust Indenture Act, (W) the principal amount of any Original Issue
Discount Securities that may be counted in making such determination or
calculation and that shall be deemed to be outstanding for such purpose shall be
equal to the amount of principal thereof that would be (or shall have been
declared to be) due and payable, at the time of such Determination, upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.02,
(X) the principal amount of any Security denominated in a Foreign Currency that
may be counted in making such determination or calculation and that shall be
deemed Outstanding for such purpose shall be equal to the Dollar equivalent,
determined as of the date such Security is originally issued by the Company as
set forth in an Exchange Rate Officer's Certificate delivered to the Trustee, of
the principal amount (or, in the case of an Original Issue Discount Security,
the Dollar equivalent as of such date of original issuance of the amount
determined as provided in clause (W) above) of such Security, (Y) the principal
amount of any Indexed Security that may be counted in making such determination
or calculation and that shall be deemed Outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such security pursuant to
Section 3.01, and (Z) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, or interest and any other payments on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula for determining the
rate or rates of interest
10
thereon, if any, the Maturity thereof and the redemption provisions, if any,
with respect thereto, are to the determined by the Company upon the issuance of
such Securities.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where the principal of,
premium, if any, and interest and any other payments on such Securities are
payable as specified as contemplated by Sections 3.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means, with respect to any Person, any
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary liquidation or dissolution of such Person, over
Capital Stock of any other class in such Person.
"Principal Amount", when used with respect to any Security,
means the amount of principal, if any, payable in respect thereof at Maturity;
provided, however, that when used with respect to an Indexed Security in any
context other than the making of payments at Maturity, "principal amount" means
the principal face amount of such Indexed Security at original issuance.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
11
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of or within any series means the date specified
for that purpose as contemplated by Section 3.01.
"Responsible Officer", when used with respect to the Trustee,
shall mean the chairman or any vice chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any senior vice
president, any vice president, any assistant vice president, the secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer, any trust officer, the controller, any assistant
controller, or any officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with a particular subject.
"Securitization Entity" means any pooling arrangement or
entity formed or originated for the purpose of holding, and/or issuing
securities representing interests in, one or more pools of mortgages, leases,
credit card receivables, home equity loan receivables, automobile loans, leases
or installment sales contracts, other consumer receivables or other financial
assets of the Company or any Subsidiary, and shall include, without limitation,
any partnership, limited liability company, liquidating trust, grantor trust,
owner trust or real estate mortgage investment conduit.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means a Security or Securities
of the Company issued, authenticated and delivered under this Indenture.
"Senior Indebtedness" means, with respect to the Company,
whether recourse is to all or a portion of the assets of the Company and whether
or not contingent, (i) every obligation of the Company for money borrowed, (ii)
every obligation of the Company evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of the Company with respect to letters of credit, bankers'
acceptances or similar facilities issued for
12
the account of the Company, (iv) every obligation of the Company issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every Capital Lease Obligation of the Company, (vi) every
obligation of the Company for claims (as defined in Section 101(4) of the United
States Bankruptcy Code of 1978, as amended) in respect of derivative products
such as interest and foreign exchange rate contracts, commodity contracts and
similar arrangements and (vii) every obligation of the type referred to in
clauses (i) through (vi) of another Person and all dividends of another Person
the payment of which, in either case, the Company has guaranteed or is
responsible or liable, directly or indirectly, as obligor or otherwise;
provided, however, that "Senior Indebtedness" shall not include (i) any
obligations which, by their terms, are expressly stated to rank pari passu in
right of payment with, or to not be superior in right of payment to, the 10 7/8%
Capital Securities and the Securities, (ii) any Senior Indebtedness of the
Company which when incurred and without respect to any election under Section
1111(b) of the United States Bankruptcy Code of 1978, as amended, was without
recourse to the Company, (iii) any Senior Indebtedness of the Company to any of
its Subsidiaries, (iv) any Senior Indebtedness to any employee of the Company or
(v) any Senior Indebtedness in respect of debt securities issued to any trust,
or a trustee of such trust, partnership or other entity affiliated with the
Company that is a financing entity of the Company in connection with the
issuance by such financing entity of securities that are similar to the 10 7/8%
Capital Securities.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified on such Security or on a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) a
corporation more than 50% of the combined voting power of the outstanding Voting
Stock of which is owned, directly or indirectly, by such Person or by one or
more other Subsidiaries of such Person or by such Person and one or more
Subsidiaries thereof, (ii) any other Person (other than a corporation) in which
such Person, or one or more other Subsidiaries of such Person or such Person and
one or more other Subsidiaries thereof,
13
directly or indirectly, has at least a majority ownership and power to direct
the policies, management and affairs thereof, or (iii) any other Person which is
otherwise controlled by such Person or by one or more other Subsidiaries of such
Person or by such Person and one or more other Subsidiaries of such Person.
"10 7/8% Capital Securities" means the $125,000,000 aggregate
liquidation amount of 10 7/8% Capital Securities issued by Ocwen Capital Trust
I.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in effect on the date of this Indenture, except as provided in Section 8.03.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor Trustee replaces it pursuant to the
applicable provisions of this Indenture, and thereafter means such successor
Trustee and if, at any time, there is more than one Trustee, "Trustee" as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of that series.
"United States" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.01, the United
States of America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.01, a citizen,
national or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust, the income of which is
subject to United States federal income taxation regardless of its source.
"Voting Stock" of any Person means capital stock of such
Person which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
(b) The following terms shall have the meanings specified in
the Sections referred to opposite such term below:
14
TERM SECTION
"Act" 1.04(a)
"Additional Amount" 3.01(17)
"Bankruptcy Law" 5.01
"Component Currency" 3.12(h)
"Conversion Date" 3.12(d)
"Custodian" 5.01
"Defaulted Interest" 3.07(b)
"Election Date" 3.12(h)
"Event of Default" 5.01
"Judgment Date" 5.16
"Notice of Default" 5.01(3)
"Payment Blockage Notice" 12.04
"Register" 3.05
"Registrar" 3.05
"Substitute Date" 5.16
"Valuation Date" 3.12(c)
Section 1.02. Compliance Certificate and Opinions. Upon any
application or request by the Company to the Trustee to take an action under any
provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.03 and 9.06) shall include:
(a) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as
15
is necessary to enable him to express an informed opinion as to whether
or not such condition or covenant has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Forms of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations as to such matters are
erroneous.
Any certificate, statement or opinion of an Officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such Officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion is based are erroneous.
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.
16
Section 1.04. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective upon action by the
requisite percentage of Holders 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.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make, give or
take, by a proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted in this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other 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
17
holding such Bearer Securities, if such certificate or affidavit is deemed by
the Trustee to be satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (i) another such certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, (ii) such Bearer Security is produced to the Trustee by some other
Person, (iii) such Bearer Security is surrendered in exchange for a Registered
Security or (iv) such Bearer Security is no longer Outstanding. The ownership of
Bearer Securities may also be proved in any other manner which the Trustee deems
sufficient; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(d) The ownership of Registered Securities shall be proved by
the Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) If the Company shall solicit from the Holders of any
series any request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, by or pursuant to a Board Resolution,
fix in advance a record date for the determination of Holders of such series
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so,
provided that the Company may not set a record date for, and the provisions of
this paragraph shall not apply with respect to, the giving or making of any
notice, declaration, request or direction referred to in the next paragraph. If
such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed
effective unless it
18
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(g) The Trustee may set any day as a record date for the
purpose of determining the Holders of any series entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.02, (iii) any direction referred to in Section 5.08 or
(iv) any request to institute proceedings referred to in Section 5.09(2), and
(v) any waiver of past defaults pursuant to Section 5.07, in each case with
respect to Securities of such series. If such a record date is fixed pursuant to
this paragraph, the relevant action may be taken or given before or after such
record date, but only the Holders of record at the close of business on such
record date shall be deemed to be holders of a series for the purpose of
determining whether Holders of the requisite proportion of Outstanding
Securities of such series have authorized or agreed or consented to such action,
and for that purpose the Outstanding Securities of such series shall be computed
as of such record date; provided that no such action by Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Company's expense, shall cause notice of such record date and the proposed
action by Holders to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.06.
Section 1.05. Notices, Etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) in writing and mailed,
19
first-class postage prepaid, to the Trustee at its Corporate Trust
Office at [ADDRESS], or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) in writing and mailed, first-class postage prepaid,
to the Company addressed to it at Ocwen Financial Corporation, The
Forum, Suite 1000, 0000 Xxxx Xxxxx Xxxxx Xxxx., Xxxx Xxxx Xxxxx,
Xxxxxxx 00000, Attention: General Counsel or at any other address
previously furnished in writing to the Trustee by the Company.
Section 1.06. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of an event (i) if any of the Securities affected
by such event are Registered Securities, such notice to the Holders thereof
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed first-class postage prepaid to each such Holder affected by
such event, at its address as it appears in the Register within the time
prescribed for the giving of such notice and, (ii) if any of the Securities
affected by such event are Bearer Securities, notice to the Holders thereof
shall be sufficiently given (unless otherwise herein or in the terms of such
Bearer Securities expressly provided) if published once in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.01.
In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. In any case where notice is given to Holders of Bearer
Securities by publication, neither the failure to publish such notice, nor any
defect in any notice so published, shall affect the sufficiency of such notice
with respect to other Holders of Bearer Securities or the sufficiency of any
notice with respect to any Holders of Registered Securities given as provided
herein. Any notice mailed to a Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give
20
such notice as provided above, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder with respect to a Holder of Registered Securities. If it is
impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice with respect to a Holder of Bearer
Securities.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event and such waiver shall be equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.07. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.08. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 1.09. Separability. In case any provision of this
Indenture or the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.10. Benefits of Indenture. Nothing in this Indenture
or in the Securities, expressed or implied, shall give to any Person, other than
the parties hereto and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law. This Indenture, the Securities
and any coupons appertaining thereto shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of laws. This
21
Indenture is subject to the Trust Indenture Act and if any provision hereof
limits, qualifies or conflicts with any provision of the Trust Indenture Act,
which is required under such Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be. Whether or not this Indenture is
required to be qualified under the Trust Indenture Act, the provisions of the
Trust Indenture Act required to be included in an indenture in order for such
indenture to be so qualified shall be deemed to be included in this Indenture
with the same effect as if such provisions were set forth herein and any
provisions hereof which may not be included in an indenture which is so
qualified shall be deemed to be deleted or modified to the extent such
provisions would be required to be deleted or modified in an indenture so
qualified.
Section 1.12. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of any Security
or coupon other than a provision in the Securities of an series which
specifically states that such provision shall apply in lieu of this Section)
payment of principal, premium, if any, or interest need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on such
date; provided that to the extent such payment is made on such next succeeding
Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
ARTICLE II
Security Forms
Section 2.01. Forms Generally. The Securities of each series
and the coupons, if any, to be attached thereto shall be in substantially such
form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed
22
thereon as may be required to comply with the rules of any securities exchange
or Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities and coupons, if any, as evidenced by their
execution of the Securities and coupons, if any. If temporary Securities of any
series are issued as permitted by Section 3.04, the form thereof also shall be
established as provided in the preceding sentence. If the forms of Securities
and coupons, if any, of any series are established by, or by action taken
pursuant to, a Board Resolution, a copy of the Board Resolution together with an
appropriate record of any such action taken pursuant thereto, including a copy
of the approved form of Securities or coupons, if any, shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 3.03
for the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.01,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be
printed, lithographed or engraved on steel engraved boarders or may be produced
in any other manner, all as determined by the officers executing such Securities
and coupons, if any, as evidenced by their execution of such Securities and
coupons, if any.
Section 2.02. Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series
described in the within-mentioned Indenture.
--------------------------------------,
as Trustee
By:
-----------------------------------
Authorized Signatory
Section 2.03. Securities in Global Form. If Securities of or
within a series are issuable in whole or in part in global form, any such
Security of such series may provide that it shall represent the aggregate or
specified amount of Outstanding Securities of such series from time to time
endorsed thereon and may also provide that the aggregate amount of
23
Outstanding Securities of such series represented thereby may from time to time
be reduced or increased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Holders, of Outstanding Securities represented thereby,
shall be made in such manner and by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant to
Section 3.03 or 3.04. Subject to the provisions of Section 3.03 and, if
applicable, Section 3.04, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the Person
or Persons specified therein or in the applicable Company Order. Any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 1.02 hereof and need not be accompanied by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.03 shall
apply to any Security in global form if such Security was never issued and sold
by the Company and the Company delivers to the Trustee the Security in global
form together with written instructions (which need not comply with Section 1.02
and need not be accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented thereby, together
with the written statement contemplated by the last paragraph of Section 3.03.
Notwithstanding the provisions of Section 2.01 and 3.07,
unless otherwise specified as contemplated by Section 3.01, payment of principal
of, premium, if any, and interest on any Security in permanent global form shall
be made to the Person or Persons specified therein.
Section 2.04. Form of Legend for Securities in Global Form.
Any Registered Security in global form authenticated and delivered hereunder
shall bear a legend in substantially the following form with such changes as may
be required by the Depositary:
THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
CERTIFICATED FORM IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY THE
24
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
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
ARTICLE III
The Securities
Section 3.01. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established with respect to
each series of Securities issued hereunder (i) by a Board Resolution, (ii) by
action taken pursuant to a Board Resolution and (subject to Section 3.03) set
forth, or determined in the manner provided, in an Officers' Certificate or
(iii) in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title
shall distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other securities of the series pursuant to
Section 3.04, 3.05, 3.06, 8.06, or 10.07);
(3) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method of calculating such rate or
rates of interest, the date or dates from which such interest shall
accrue or the method by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable
and, with respect to Registered Securities, the Regular
25
Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date;
(5) the place or places in addition to the City of New York
where the principal of, premium, if any, and interest, if any, on
Securities of the series shall be payable;
(6) the right, if any, of the Company to defer payment of
interest on the Securities, and the maximum length of any such deferral
period and any related terms, conditions or covenants;
(7) the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in
which, and the other terms and conditions upon which, Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than as provided in Section 10.03, the manner in
which the particular Securities of such series (if less than all
Securities of such series are to be redeemed) are to be selected for
redemption;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, and the other terms and conditions upon
which, Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than the
denomination of $5,000 and any integral multiple thereof, if Bearer
Securities, the denominations in which Securities of the series shall
be issuable;
(10) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal of, premium,
if any, and interest, if any, on the Securities of the series shall be
payable, or in which the Securities of the series shall be denominated,
and the particular provisions applicable thereto in accordance with, in
addition to, or in lieu of the provisions of Section 3.12;
(11) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made, at
the election of the Company or a Holder, in a currency or currencies
(including currency unit or units)
26
other than that in which such Securities are denominated or designated
to be payable, the currency or currencies (including currency unit or
units) in which such payments are to be made, the terms and conditions
of such payments and the manner in which the exchange rate with respect
to such payments shall be determined, and the particular provisions
applicable thereto in accordance with, in addition to, or in lieu of
the provisions of Section 3.12;
(12) if the amount of payments of principal of, premium, if
any, and interest, if any, on the Securities of the series shall be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on a
currency or currencies (including currency unit or units) other than
that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by which
such amounts shall be determined;
(13) if other than the principal amount thereof, the portion
of the principal amount of such Securities of the series which shall be
payable upon declaration of acceleration thereof pursuant to Section
5.02 or the method by which such portion shall be determined;
(14) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be
determined);
(15) if other than as provided in Section 3.07, the Person to
whom any interest on any Registered Security of the series shall be
payable and the manner in which, or the Person to whom, any interest on
any Bearer Securities of the series shall be payable;
(16) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
27
(17) any deletions from, modifications of or additions to the
Events of Default set forth in Section 5.01, the Events of Default the
occurrence of which would permit the declaration of the acceleration of
Maturity pursuant to Section 5.02 or the covenants of the Company set
forth in Article IX pertaining to the Securities of the series;
(18) under what circumstances, if any, the Company will pay
additional amounts on the Securities of that series held by a Person
who is not a U.S. Person in respect of taxes or similar charges
withheld or deducted ("Additional Amounts") and, if so, whether the
Company will have the option to redeem such Securities rather than pay
such additional amounts (and the terms of any such option);
(19) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without interest
coupons), or both, and any restrictions applicable to the offering,
sale or delivery of Bearer Securities and, if other than as provided in
Section 3.05, the terms upon which Bearer Securities of a series may be
exchanged for Registered Securities of the same series and vice versa;
(20) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(21) the forms of the Securities and coupons, if any, of the
series;
(22) the applicability, if any, to the Securities of or within
the series of Sections 4.04 and 4.05, or such other means of defeasance
or covenant defeasance as may be specified for the Securities and
coupons, if any, of such series, and, if the Securities are payable in
a currency other than Dollars, whether, for the purpose of such
defeasance or covenant defeasance the term "Government Obligations"
shall include obligations referred to in the definition of such term
which are not obligations of the United States or an agency or
instrumentality of the United States;
(23) if other than the Trustee, the identity of the Registrar
and any Paying Agent;
28
(24) the designation of the initial Exchange Rate Agent, if
any;
(25) if the Securities of the series shall be issued in whole
or in part in global form (i) the Depositary for such global
Securities, (ii) the form of any legend in addition to or in lieu of
that in Section 2.04 which shall be borne by such global Security,
(iii) whether beneficial owners of interests in any Securities of the
series in global form may exchange such interests for certificated
Securities of such series and of like tenor of any authorized form and
nomination, and (iv) if other than as provided in Section 3.05, the
circumstances under which any such exchange may occur;
(26) any addition to, deletion from or change in Article XII
with respect to Securities of the Series; and
(27) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) including any terms
which may be required by or advisable under United States laws or
regulations or advisable (as determined by the Company) in connection
with the marketing of Securities of the series.
(c) All Securities of any one series and coupons, if any,
appertaining to any Bearer Securities of such series shall be substantially
identical except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.03) set forth or
determined in the manner provided, in the related Officers' Certificate or (iii)
in an indenture supplemental hereto. All Securities of any one series need not
be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be certified by the Corporate Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth, or providing the manner for
determining, the terms of the Securities of such series, and an appropriate
record of any action taken pursuant thereto in connection with the issuance of
any Securities of such series shall be delivered to the Trustee prior to the
authentication and delivery thereof.
29
(e) The Securities shall be subordinated and subject in right of
payment to Senior Indebtedness as provided in Article XII.
Section 3.02. Denominations. Unless otherwise provided as
contemplated by Section 3.01, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000
and any integral multiples thereof.
Section 3.03. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by two Officers. The
Company's seal shall be reproduced on the Securities. The signatures of any of
these officers on the Securities may be manual or facsimile. The coupons, if
any, of Bearer Securities shall bear the facsimile signature of two Officers.
Securities and coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities, together with any coupons appertaining thereto, of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.0l, in authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall
30
be entitled to receive, and (subject to Section 315(a) through (d) of the Trust
Indenture Act) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(1) if the forms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 2.01, that such forms have been established in conformity with
the provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by
Section 3.01, that such terms have been, or in the case of Securities
of a series offered in a Periodic Offering, will be, established in
conformity with the provisions of this Indenture, subject in the case
of Securities offered in a Periodic Offering, to any conditions
specified in such Opinion of Counsel; and
(3) that such Securities together with any coupons
appertaining thereto, when authenticated and delivered by the trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles and except further as
enforcement thereof may be limited by (A) requirements that a claim
with respect to any Securities denominated other than in Dollars (or a
Foreign Currency or currency unit judgment in respect of such claim) be
converted into Dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments in Foreign Currencies
or currency units or payments outside the United States.
Notwithstanding that such form or terms have been so
established, the Trustee shall have the right to decline to authenticate such
Securities if, in the written opinion of counsel to the Trustee (which counsel
may be an employee of the Trustee) reasonably acceptable to the Company, the
issue of such Securities pursuant to this Indenture will adversely affect the
Trustee's own rights, duties or immunities under this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee. Notwithstanding the
generality of the foregoing, the Trustee will not be required to authenticate
Securities
31
denominated in a Foreign Currency if the Trustee reasonably believes that it
would be unable to perform its duties with respect to such Securities.
Notwithstanding the provisions of Section 3.01 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic
Offering, the Trustee may rely, as to the authorization by the Company of any of
such securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.01 and 3.01 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.01 that
the Securities of a series are to be issued in whole or in part in global form,
then the Company shall execute and the Trustee shall, in accordance with this
Section and the Company Order with respect to such series, authenticate and
deliver one or more Securities of such series in global form that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of the Outstanding Securities of such series to be represented by such
Security or Securities in global form, (ii) shall be registered, if a Registered
Security, in the name of the Depositary for such Security or Securities in
global form 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 the legends set forth in Section 2.04 and the terms of the Board
Resolution or supplemental indenture relating to such series.
Each Depositary designated pursuant to Section 3.01 for a
Registered Security in global form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, and any other applicable
statute or regulation. The Trustee shall have no responsibility to determine if
the Depositary is so registered. Each Depositary shall enter into an
32
agreement with the Trustee and the Company governing the respective duties and
rights of such Depositary, the Company and the Trustee with regard to Securities
issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 3.01.
No Security or coupon appertaining thereto shall be entitled
to any benefits under this Indenture or be valid or obligatory for any purpose
until the certificate of authentica tion substantially in the form provided
herein is executed by the manual signature of one of the authorized signatories
of the Trustee or an Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such signature upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered under this Indenture and is
entitled to the benefits of this Indenture. Except as permitted by Section 3.06
or 3.07, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
canceled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
Section 3.04. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and, upon Company
Order, the Trustee shall authenticate and deliver temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without coupons, of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities and coupons, if
any. In the case of Securities of any series, such temporary Securities may be
in global form,
33
representing all or a portion of the Outstanding Securities of such series.
Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the provisions thereof, if
temporary Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company pursuant to Section 9.02 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor; provided, however, that no definitive Bearer Security, except as may be
provided pursuant to Section 3.01, shall be delivered in exchange for a
temporary Registered Security; and provided further that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security unless
the Trustee shall have received from the person entitled to receive the
definitive Bearer Security a certificate substantially in the form approved in
or pursuant to the Board Resolutions relating thereto and such delivery shall
occur only outside the United States. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series except as otherwise
specified as contemplated by Section 3.01.
Section 3.05. Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency to be maintained by the Company in accordance with Section 9.02
in a Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
34
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.02 in a Place of Payment for that series, the Company shall execute and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount containing
identical terms and provisions.
Bearer Securities or any coupons appertaining thereto shall be
transferable by delivery.
At the option of the Holder, Registered Securities of any
series (except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations and of
a like aggregate principal amount containing identical terms and provisions,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified as contemplated by Section 3.01, Bearer
Securities may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.01, at
the option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been
35
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 9.02, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case any Bearer Security of
any series is surrendered at any such office or agency in exchange for a
Registered Security of the same series after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or, if such coupon
is so surrendered with such Bearer Security, such coupon shall be returned to
the person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon, when due in accordance with the provisions of this
Indenture.
Each Security issued in global form authenticated under this
Indenture shall be registered in the name of the Depositary designated for such
series or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Security issued in global form
shall constitute a single Security for all purposes of this Indenture.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in certificated
form in the circumstances described below, a Security in global form
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the 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 defaults in the performance of its duties
as Depositary or if at any time the Depositary for the Securities of such series
shall
36
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 Company receives such notice or becomes aware of such
ineligibility, the Company selection pursuant to Section 3.01(b)(24) shall no
longer be effective with respect to the Securities of such series and the
Company shall execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of certificated Securities of such series of like
tenor, shall authenticate and deliver Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
The Company may at any time in its sole discretion determine
that Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.01 with
respect to a series of Securities, the Depositary for such series may surrender
a Security in global form of such series in exchange in whole or in part for
Securities of such series in certificated form on such terms as are acceptable
to the Company and such Depositary. Thereupon, the Company shall execute, and
the Trustee shall authenticate and deliver, without service charge,
(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 Security in global form; and
(ii) to such Depositary a new Security in global form of like
tenor in a denomination equal to the difference, if any, between the
principal amount of the surrendered
37
Security in global form and the aggregate principal amount of
certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities
in certificated form, such Security in global form shall be canceled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
upon any exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Registrar and
the Trustee duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of
transfer or for any exchange of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration or transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 8.06 or 10.07 not
involving any transfer.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall not be required
(i) to issue, register the transfer of, or exchange any Securities of that
series for a period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of any such Securities selected for
38
redemption under Section 10.03 and ending at the close of business on the day of
such mailing; (ii) to register the transfer of or exchange any Registered
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any Security being redeemed in part; or (iii) to exchange any Bearer
Security so selected for redemption, except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor; provided that
such Registered Security shall be simultaneously surrendered for redemption.
The foregoing provisions relating to registration, transfer
and exchange may be modified, supplemented or superseded with respect to any
series of Securities by a Board Resolution or in one or more indentures
supplemental hereto.
Section 3.06. Replacement Securities. If a mutilated Security
or a Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with coupons corresponding to the
coupons appertaining to the surrendered Security, if such surrendered Security
was a Bearer Security, of the same series and date of maturity, if the Trustee's
requirements are met, containing identical terms and of like tenor and of like
principal amount.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or stolen),
a replacement Registered Security, if such Holder's Claim appertains to a
Registered Security, or a replacement Bearer Security with coupons corresponding
to the coupons appertaining to the destroyed, lost or stolen Bearer Security or
the Bearer Security to which such lost, destroyed or stolen coupon appertains,
if such Holder's claim appertains to a Bearer Security, of the same series and
principal amount, containing identical terms and provisions and bearing a number
not contemporaneously outstanding with coupons corresponding to the
39
coupons, if any, appertaining to the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen Security
or coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or coupon, pay such Security
or coupon; provided, however, that payment of principal of and any premium or
interest on Bearer Securities shall, except as otherwise provided in Section
9.02, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.01, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require that payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee, its agents and
counsel) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
and its coupon, if any, or the destroyed, lost or stolen coupon, shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise provided as contemplated by Section 3.01 with respect to
any series of Securities, interest, if any, on any Registered Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date.
40
Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, (i) interest, if any, on Bearer Securities
shall be paid only against presentation and surrender of the coupons for such
interest installments as are evidenced thereby as they mature and (ii) original
issue discount, if any, on Bearer Securities shall be paid only against
presentation and surrender of such Securities; in either case at the office of a
Paying Agent located outside the United States, unless the Company shall have
otherwise instructed the Trustee in writing, provided that any such instruction
for payment in the United States does not cause any Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations. The interest, if any, on any temporary Bearer Security shall be
paid, as to any installment of interest evidenced by a coupon attached thereto
only upon presentation and surrender of such coupon and, as to other
installments of interest, only upon presentation of such Security for notation
thereon of the payment of such interest. If at the time a payment of principal
of or interest, if any, on a Bearer Security or coupon shall become due, the
payment of the full amount so payable at the office or offices of all the Paying
Agents outside the United States is illegal or effectively precluded because of
the imposition of exchange controls or other similar restrictions on the payment
of such amount in Dollars, then the Company may instruct the Trustee in writing
to make such payments at a Paying Agent located in the United States, provided
that provision for such payment in the United States would not cause such Bearer
Security to be treated as a "registration-required obligation" under United
States laws and regulations.
(b) Unless otherwise provided as contemplated by Section 3.01
with respect to any series of Securities, any interest on Registered Securities
of any series which is payable, but is not punctually paid or duly provided for,
on any Interest Payment Date for such Registered Securities (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holders on the
relevant Regular Record Date by virtue of their having been such Holders, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of such
Defaulted Interest to the Persons in whose names such
Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid
41
in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause (1)
provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of such
Registered Securities at his address as it appears in the
Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons
in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer
Security of any series is surrendered at the office or agency
in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business
at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date
of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to
the Holder of such coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of such Defaulted
Interest to the Persons in whose names such Registered
Securities (or their respective Predecessor Securities) are
registered at the close of business on a specified date in any
other lawful manner not inconsistent with the requirements of
any securities exchange on which such Registered Securities
may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause (2), such
42
manner of payment shall be deemed practicable by the
Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.05, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 3.08. Persons Deemed Owners. Prior to due presentment
of any Registered Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Registered Security is registered as the owner of such
Registered Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Sections 3.05 and 3.07) interest on and
Additional Amounts with respect to such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary (or its nominee) as a Holder,
with respect to such Security in global form or impair, as between such
Depositary and owners of beneficial interests in such Security in global form,
the operation of customary practices governing the exercise of the rights of
such Depositary (or its nominee) as Holder of such Security in global form.
43
Section 3.09. Cancellation. The Company at any time may
deliver Securities and coupons to the Trustee for cancellation. The Registrar
and any Paying Agent shall forward to the Trustee any Securities and coupons
surrendered to them for replacement, for registration of transfer, or for
exchange or payment. The Trustee shall cancel all Securities and coupons
surrendered for replacement, for registration of transfer, or for exchange,
payment, redemption or cancellation and may, but shall not be required to,
dispose of canceled Securities and coupons and issue a certificate of
destruction to the Company. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
Section 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.01, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, in such
case, the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
Section 3.12. Currency and Manner of Payment in Respect of
Securities. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 3.01, with respect to Registered Securities of any series
not permitting the election provided for in paragraph (b) below or the Holders
of which have not made the election provided for in paragraph (b) below, and
with respect to Bearer Securities of any series, except as provided in paragraph
(d) below, payment of the principal of, premium, if any, and interest, if any,
on any Registered or Bearer Security of such series will be made in the currency
or currencies or currency unit or units in which such Registered Security or
Bearer Security, as the case may be, is payable. The provisions of this Section
3.12 may be modified or superseded pursuant to Section 3.01 with respect to any
Securities.
(b) It may be provided pursuant to Section 3.01, with respect
to Registered Securities of any series, that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal of,
premium, if any, or
44
interest, if any, on such Registered Securities in any of the currencies or
currency units which may be designated for such election by delivering to the
Trustee (or the applicable Paying Agent) a written election with signature
guarantees and in the applicable form established pursuant to Section 3.01, not
later than the close of business on the Election Date immediately preceding the
applicable payment date. If a Holder so elects to receive such payments in any
such currency or currency unit, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee (or any applicable Paying Agent) for
such series of Registered Securities (but any such change must be made not later
than the close of business on the Election Date immediately preceding the next
payment date to be effective for the payment to be made on such payment date,
and no such change of election may be made with respect to payments to be made
on any Registered Security of such series with respect to which an Event of
Default has occurred or with respect to which the Company has deposited funds
pursuant to Article IV or with respect to which a notice of redemption has been
given by or on behalf of the Company pursuant to Article X). Any Holder of any
such Registered Security who shall not have delivered any such Election to the
Trustee (or any applicable Paying Agent) not later than the close of business on
the applicable Election Date will be paid the amount due on the applicable
payment date in the relevant currency or currency unit as provided in Section
3.12(a). The Trustee (or the applicable Paying Agent) shall notify the Exchange
Rate Agent as soon as practicable after the Election Date of the aggregate
principal amount of Registered Securities for which Holders have made such
written election.
(c) If the election referred to in paragraph (b) above has
been provided for with respect to any Registered Securities of a series pursuant
to Section 3.01, then, unless otherwise specified pursuant to Section 3.01 with
respect to any such Registered Securities, not later than the fourth Business
Day after the Election Date for each payment date for such Registered
Securities, the Exchange Rate Agent will deliver to the Company a written notice
specifying, in the currency or currencies or currency unit or units in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of, premium, if any, and interest, if any, on such
Registered Securities to be paid on such payment date, and specifying the
amounts in such currency or currencies or currency unit or units so payable in
respect of such Registered Securities as to which the Holders of Registered
Securities denominated in any currency or currencies or currency unit or units
shall have elected to be paid in another currency or currency unit as provided
in paragraph (b) above. If the election referred to in paragraph
45
(b) above has been provided for with respect to any Registered Securities of a
series pursuant to Section 3.01, and if at least one Holder has made such
election, then, unless otherwise specified pursuant to Section 3.01, on the
second Business Day immediately preceding such payment date the Company will
deliver to the Trustee (or the applicable Paying Agent) an Exchange Rate
Officers' Certificate in respect of the Dollar, Foreign Currency or Currencies,
ECU or other currency unit payments to be made on such payment date. Unless
otherwise specified pursuant to Section 3.01, the Dollar, Foreign Currency or
Currencies, ECU or other currency unit amount receivable by Holders of
Registered Securities who have elected payment in a currency or currency unit as
provided in paragraph (b) above shall be determined by the Company on the basis
of the applicable Market Exchange Rate in effect on the second Business Day (the
"Valuation Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency, ECU or any other currency unit in which any of the Securities are
denominated or payable otherwise than pursuant to an election provided for
pursuant to paragraph (b) above, then, with respect to each date for the payment
of principal of, premium, if any, and interest, if any, on the applicable
Securities denominated or payable in such Foreign Currency, ECU or such other
currency unit occurring after the last date on which such Foreign Currency, ECU
or such other currency unit was used (the "Conversion Date"), the Dollar shall
be the currency of payment for use on each such payment date (but such Foreign
Currency, ECU or such other currency unit that was previously the currency of
payment shall, at the Company's election, resume being the currency of payment
on the first such payment date preceded by 15 Business Days during which the
circumstances which gave rise to the Dollar becoming such currency no longer
prevail). Unless otherwise specified pursuant to Section 3.01, the Dollar amount
to be paid by the Company to the Trustee or any applicable Paying Agent and by
the Trustee or any applicable Paying Agent to the Holders of such Securities
with respect to such payment date shall be, in the case of a Foreign Currency
other than a currency unit, the Dollar Equivalent of the Foreign Currency or in
the case of a Foreign Currency that is a currency unit, the Dollar Equivalent of
the Currency limit, in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.01, if
the Holder of a Registered Security denominated in any currency or currency unit
shall have elected to be paid in
46
another currency or currency unit or in other currencies as provided in
paragraph (b) above, and (i) a Conversion Event occurs with respect to any such
elected currency or currency unit, such Holder shall receive payment in the
currency or currency unit in which payment would have been made in the absence
of such election and (ii) if a Conversion Event occurs with respect to the
currency or currency unit in which payment would have been made in the absence
of such election, such Holder shall receive payment in Dollars as provided in
paragraph (d) of this Section 3.12 (but, subject to any contravening valid
election pursuant to paragraph (b) above, the elected payment currency or
currency unit, in the case of the circumstances described in clause (i) above,
or the payment currency or currency unit in the absence of such election, in the
case of the circumstances described in clause (ii) above, shall, at the
Company's election, resume being the currency or currency unit of payment with
respect to Holders who have so elected, but only with respect to payments on
payment dates preceded by 15 Business Days during which the circumstances which
gave rise to such currency or currency unit, in the case of the circumstances
described in clause (i) above, or the Dollar, in the case of the circumstances
described in clause (ii) above, as applicable, becoming the currency or currency
unit of payment, no longer prevail).
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by the Exchange Rate Agent by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and, subject to the provisions of
paragraph (h) below, shall be the sum of each amount obtained by converting the
specified amount of each Component Currency (as each such term is defined in
paragraph (h) below) into Dollars at the Market Exchange Rate for such Component
Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.12 the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which,
on the Conversion Date, was a component currency of the
relevant currency unit, including, but not limited to, ECU.
47
"Election Date" shall mean the Regular Record Date
for the applicable series of Registered Securities as
specified pursuant to Section 3.01 by which the written
election referred to in Section 3.12(b) may be made.
A "Specified Amount" of a Component Currency shall
mean the number of units of such Component Currency or
fractions thereof which such Component Currency represented in
the relevant currency unit, including, but not limited to,
ECU, on the Conversion Date. If after the Conversion Date the
official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such
Component Currency shall be divided or multiplied in the same
proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the
respective Specified Amounts of such Component Currencies
shall be replaced by an amount in such single currency equal
to the sum of the respective specified Amounts of such
consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified
Amount and such single currency shall thereafter be a
Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the
Specified Amount of such Component Currency shall be replaced
by specified amounts of such two or more currencies, the sum
of which, at the Market Exchange Rate of such two or more
currencies on the date of such replacement, shall be equal to
the Specified Amount of such former Component Currency and
such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies. If, after
the Conversion Date of the relevant currency unit, including,
but not limited to, ECU, a Conversion Event (other than any
event referred to above in this definition of "Specified
Amount") occurs with respect to any Component Currency of such
currency unit and is continuing on the applicable Valuation
Date, the Specified Amount of such Component Currency shall,
for purposes of calculating the Dollar Equivalent of the
Currency Unit, be converted into Dollars at the Market
Exchange Rate in effect on the Conversion Date of such
Component Currency.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above
48
shall be in its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the Company, the
Trustee (and any applicable Paying Agent) and all Holders of Securities
denominated or payable in the relevant currency, currencies or currency units.
The Exchange Rate Agent shall promptly give written notice to the Company and
the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will promptly give written notice thereof to the Trustee of the appropriate
series of Securities (or any applicable Paying Agent) and to the Exchange Rate
Agent (and the Trustee (or such Paying Agent) will promptly thereafter give
notice in the manner provided in Section 1.06 to the affected Holders)
specifying the Conversion Date. In the event the Company so determines that a
Conversion Event has occurred with respect to ECU or any other currency unit in
which Securities are denominated or payable, the Company will promptly give
written notice thereof to the Trustee (or any applicable Paying Agent) and to
the Exchange Rate Agent (and the Trustee (or such Paying Agent) will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the definition of Specified Amount above has occurred, the Company will
similarly give written notice to the Trustee (or any applicable Paying Agent)
and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information received by
it from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
Section 3.13. Appointment and Resignation of Exchange Rate
Agent. (a) Unless otherwise specified pursuant to Section 3.01, if and so long
as the Securities of any series (i) are denominated in a currency other than
Dollars or (ii) may be payable in a currency other than Dollars, or so long as
it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent
to make the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 3.12 for the purpose of
49
determining the applicable rate of exchange and, if applicable, for the purpose
of converting the issued currency or currencies or currency unit or units into
the applicable payment currency or currency unit for the payment of principal,
premium, if any, and interest, if any, pursuant to Section 3.12.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company and the
Trustee of the appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agency for any cause, with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities of
one or more or all of such series and that, unless otherwise specified pursuant
to Section 3.01 at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same currency or currencies or currency unit or units).
ARTICLE IV
Satisfaction, Discharge and Defeasance
Section 4.01. Termination of Company's Obligations Under the
Indenture. This Indenture shall upon a Company Request cease to be of further
effect with respect to Securities of or within any series and any coupons
appertaining thereto (except as to any surviving rights of registration of
transfer or exchange of such Securities and replacement of such Securities which
may have been lost, stolen or mutilated as herein expressly provided for) and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture (including, but not
limited to, Article XII) with respect to such Securities and any coupons
appertaining thereto when
(1) either:
50
(A) all such Securities previously authenticated and delivered
and all coupons appertaining thereto (other than (i) such coupons
appertaining to Bearer Securities surrendered in exchange for
Registered Securities and maturing after such exchange, surrender of
which is not required or has been waived as provided in Section 3.05,
(ii) such Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid, as provided in Section
3.06, (iii) such coupons appertaining to Bearer Securities called for
redemption and maturing after the relevant Redemption Date, surrender
of which has been waived as provided in Section 10.06 and (iv) such
Securities and coupons for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust as
provided in Section 9.03) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation (i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or (iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company, and the Company, in the
case of (i), (ii) or (iii) above, has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust for the
purpose an amount in the currency or currencies or currency unit or
units in which the Securities of such series are payable, sufficient to
pay and discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for cancellation, for
principal, premium, if any, and interest, and any Additional Amounts
payable as specified pursuant to Section 3.01(b)(17) with respect
thereto, to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
51
Notwithstanding the satisfaction and discharge of this
Indenture, the obligation of the Company to the Trustee and any predecessor
Trustee under Section 6.09, the obligations of the Company to any Authenticating
Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.02 and the last paragraph of Section 9.03 shall
survive.
Section 4.02. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.03, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the persons entitled thereto, of the principal, premium, if any,
and any interest for whose payment such money has been deposited with or
received by the Trustee, but such money need not be segregated from other funds
except to the extent required by law.
Section 4.03. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or Covenant Defeasance. If pursuant to
Section 3.01 provision is made for either or both of (i) defeasance of the
Securities of or within a series under Section 4.04 or (ii) covenant defeasance
of the Securities of or within a series under Section 4.05, then the provisions
of such Section or Sections, as the case may be, together with the provisions of
Sections 4.06 through 4.09 inclusive, with such modifications thereto as may be
specified pursuant to Section 3.01 with respect to any Securities, shall be
applicable to such Securities and any coupons appertaining thereto, and the
Company may at its option by or pursuant to Board Resolution, at any time, with
respect to such Securities and any coupons appertaining thereto, elect to have
Section 4.04 (if applicable) or Section 4.05 (if applicable) be applied to such
Outstanding Securities and any coupons appertaining thereto upon compliance with
the conditions set forth below in this Article.
Section 4.04. Defeasance and Discharge. Upon the Company's
exercise of the option specified in Section 4.03 applicable to this Section with
respect to the Securities of or within a series, the Company shall be deemed to
have been discharged from its obligations with respect to such Securities and
any coupons appertaining thereto on and after the date the conditions set forth
in Section 4.06 are satisfied (hereinafter "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire
52
indebtedness represented by such Securities and any coupons appertaining thereto
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 4.07 and the other Sections of this Indenture referred to in clause (ii)
of this Section, and to have satisfied all its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall on a Company Order execute proper
instruments acknowledging the same), except the following which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of Holders of
such Securities and any coupons appertaining thereto to receive solely from the
trust funds described in Section 4.06(a) and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest,
if any, on such Securities or any coupons appertaining thereto when such
payments are due; (ii) the Company's obligations with respect to such Securities
under Sections 3.04, 3.05, 3.06, 9.02 and 9.03 and with respect to the payment
of additional amounts, if any, payable with respect to such Securities as
specified pursuant to Section 3.01(b)(17); (iii) the rights, powers trusts,
duties and immunities of the Trustee hereunder and (iv) this Article IV. Subject
to compliance with this Article IV, the Company may exercise its option under
this Section notwithstanding the prior exercise of its option under Section 4.05
with respect to such Securities and any coupons appertaining thereto. Following
a defeasance, payment of such Securities may not be accelerated because of an
Event of Default.
Section 4.05. Covenant Defeasance. Upon the Company's exercise
of the option specified in Section 4.03 applicable to this Section with respect
to any Securities of or within a series, the Company shall be released from its
obligations under Sections 7.01(3), 7.01(4), 9.07, 9.08, 9.09 and 9.10 and, if
specified pursuant to Section 3.01, its obligations under any other covenant,
with respect to such Securities and any coupons appertaining thereto on and
after the date the conditions set forth in Section 4.06 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Sections 7.01(3), 7.01(4),
9.07, 9.08, 9.09 and 9.10 or such other covenant but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Securities and any coupons
appertaining thereto, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section
53
or such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 5.01(3) or 5.01(8), or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and any coupons appertaining thereto shall be
unaffected thereby.
Section 4.06. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 4.04 or Section
4.05 to any Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the
requirements of Section 6.12 who shall agree to comply with and shall
be entitled to the benefits of, the provisions of Sections 4.03 through
4.09 inclusive and the last paragraph of Section 9.03 applicable to the
Trustee, for purposes of such Sections also a "Trustee") as trust funds
in trust for the purpose of making the payments referred to in clauses
(x) and (y) of this Section 4.06(a), specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities and any coupons appertaining thereto, with instructions to
the Trustee as to the application thereof, (A) money in an amount (in
such currency, currencies or currency unit or units in which such
Securities and any coupons appertaining thereto are then specified as
payable at Maturity), or (B) if Securities of such series are not
subject to repayment at the option of Holders, Government Obligations
which through the payment of interest, principal, premium, if any, and
any Additional Amounts in respect thereof in accordance with their
terms will provide not later than one day before the due date of any
payment referred to in clause (x) or (y) of this Section 4.06(a), money
in an amount or (C) a combination thereof in an amount, sufficient,
without reinvestment, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee to pay and discharge (x) the
principal of, premium, if any, and interest, if any, and any Additional
Amounts on such Securities and any coupons appertaining thereto on the
Maturity of such principal or installment of principal or interest and
(y) any mandatory sinking fund payments applicable to such Securities
on the day on which such
54
payments are due and payable in accordance with the terms of this
Indenture and such Securities and any coupons appertaining thereto.
Before such a deposit, the Company may make arrangements satisfactory
to the Trustee for the redemption of Securities at a future date or
dates in accordance with Article X which shall be given effect in
applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a Default or Event of Default
under, this Indenture or result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which
the Company is a party or by which it is bound.
(c) In the case of an election under Section 4.04, the Company
shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and
discharge had not occurred.
(d) In the case of an election under Section 4.05, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had
not occurred.
(e) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 4.04 or the
covenant defeasance under Section 4.05 (as the case may be) including
those contained in this Section 4.06 other than the 90-day period
specified in Section 4.06(g), have been complied with.
55
(f) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that neither such Securities nor
any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(g) No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such Securities
shall have occurred and be continuing at the time of such deposit or,
with regard to any such event specified in Sections 5.01(6) and (7), at
any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until after such 90th day).
(h) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940 unless such
trust shall be registered under such Act or exempt from registration
thereunder.
(i) Such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith
as contemplated by Section 3.01.
(j) No event or condition shall exist that, pursuant to
Article XII, would prevent the Company from making payments of
principal of, premium, if any, interest, if any, and any Additional
Amounts on the Securities.
Section 4.07. Deposited Money and Government Obligations to Be
Held in Trust. Subject to the provisions of the last paragraph of Section 9.03,
all money and Government Obligations (or other property as may be provided
pursuant to Section 3.01) (including the proceeds thereof) deposited with the
Trustee pursuant to Section 4.06 in respect of any Securities of any series and
any coupons appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any, and any Additional Amounts,
but such money need not be segregated from other funds except to the extent
required by law.
56
Unless otherwise specified with respect to any Security
pursuant to Section 3.01, if, after a deposit referred to in Section 4.06(a) has
been made, (i) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 3.12(b) or the terms of
such Security to receive payment in a currency or currency unit other than that
in which the deposit pursuant to Section 4.06(a) has been made in respect of
such Security, or (ii) a Conversion Event occurs as contemplated in Section
3.12(d) or 3.12(e) or by the terms of any Security in respect of indebtedness
which the deposit pursuant to Section 4.06(a) has been made, the indebtedness
represented by such Security and any coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of, premium, if any, and interest, if any, on such
Security as the same becomes due out of the proceeds yielded by converting (from
time to time as specified below in the case of any such election) the amount or
other property deposited in respect of such Security into the currency or
currency unit in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable Market Exchange Rate for
such currency or currency unit in effect on the second Business Day prior to
each payment date, except, with respect to a Conversion Event, for such currency
or currency unit in effect (as nearly as feasible) at the time of the Conversion
Event.
Section 4.08. Repayment to Company. Subject to the last
paragraph of Section 9.03, the Trustee (and any Paying Agent) shall promptly pay
to the Company upon Company Request any excess money or securities held by them
at any time.
Section 4.09. Indemnity for Government Obligations. The
Company shall pay, and shall indemnify the Trustee against, any tax, fee or
other charge imposed on or assessed against Government Obligations deposited
pursuant to this Article or the principal and interest and any other amount
received on such Government Obligations.
Section 4.10. Reinstatement. If the Trustee or the Paying
Agent is unable to apply any money or Government Obligations, as the case may
be, in accordance with this Article with respect to any Securities by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture, such Securities and any coupons appertaining thereto from
which the Company has been discharged or released pursuant to Section 4.04 or
4.05 shall be revived and reinstated as though no deposit had occurred pursuant
to this Article with respect to such Securities, until such time as the
57
Trustee or Paying Agent is permitted to apply all money or Government
Obligations, as the case may be, held in trust pursuant to Section 4.07 with
respect to such Securities and any coupons appertaining thereto in accordance
with this Article; provided, however, that if the Company makes any payment of
principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights
(if any) of the Holders of such Securities or coupons to receive such payment
from the money or Government Obligations, as the case may be, so held in trust.
ARTICLE V
Defaults and Remedies
Section 5.01. Events of Default. An "Event of Default" occurs
with respect to the Securities of any series if (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) the Company defaults in the payment of interest
on any Security of that series or any coupon appertaining
thereto or any Additional Amount payable with respect to any
Security of that series as specified pursuant to Section
3.01(b)(17) when the same becomes due and payable and such
default continues for a period of 30 days;
(2) the Company defaults in the payment of the
principal of or any premium on any Security of that series
when the same becomes due and payable at its Maturity or on
redemption or otherwise, or in the payment of a mandatory
sinking fund payment when and as due by the terms of the
Securities of that series;
(3) the Company fails to comply with any of its
agreements or covenants in, or any of the provisions of, this
Indenture with respect to any Security of that series (other
than an agreement, covenant or provision for which
non-compliance is elsewhere in this Section specifically dealt
with), and such non-compliance continues for a period of 60
days after there has been given by registered or certified
mail, to the Company
58
by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of the series, a written notice specifying such
default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder;
(4) the Company or any Subsidiary defaults in the
payment of principal or any premium of or interest on, or
other payments in respect of, any Indebtedness of the Company
or any Subsidiary of the Company after the expiration of any
applicable grace period with respect thereto, or there occurs
any acceleration of any Indebtedness of the Company or any
Subsidiary of the Company as a result of any other default in
respect of such Indebtedness, in either case where the
aggregate principal amount of such Indebtedness so unpaid or
accelerated is equal to or greater than 5% of the Company's
Consolidated Tangible Net Worth, without such Indebtedness
having been discharged, or such acceleration having been
rescinded or annulled, or there having been deposited in trust
a sum of money sufficient to discharge in full such
Indebtedness, in each case within a period of 30 days after
there shall have been given, by registered or certified mail,
to the Company by the Trustee or the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of such series a written notice
specifying such default and requiring the Company to cause
such Indebtedness to be discharged, cause to be deposited in
trust a sum sufficient to discharge in full such Indebtedness
or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder;
provided, however, that, subject to the provisions of Section
6.06, the Trustee shall not be deemed to have knowledge of
such default unless either (A) the Trustee shall have actual
knowledge of such default or (B) the Trustee shall have
received written notice thereof from the Company, from the
holder of any such Indebtedness or from any trustee in respect
of such Indebtedness;
(5) existence of one or more judgments against the
Company or any of its Subsidiaries for an aggregate amount
(including any interest thereon) in excess of 5% of the
Company's Consolidated Tangible Net Worth, which remain
undischarged 60 days after all rights to
59
directly review such judgment, whether by appeal or writ, have
been exhausted or have expired;
(6) the Company or the Bank, pursuant to or within
the meaning of any Bankruptcy Law, (A) commences a voluntary
case or proceeding, (B) consents to the entry of an order for
relief against it in an involuntary case or proceeding, (C)
consents to the appointment of a Custodian of it or for all or
substantially all of its property, (D) makes a general
assignment for the benefit of its creditors, (E) makes an
admission in writing of its inability to pay its debts
generally as they become due or (F) takes corporate action in
furtherance of any such action;
(7) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that (A) is for relief
against the Company or the Bank, in an involuntary case, (B)
adjudges the Company or the Bank as bankrupt or insolvent, or
approves as properly filed a petition seeking reorganization,
arrangement, and adjustment or composition of or in respect of
the Company or the Bank, or appoints a Custodian of the
Company or the Bank, or for all or substantially all of its
property, or (C) orders the liquidation of the Company or the
Bank and the decree remains unstayed and in effect for 60
days; or
(8) any other Event of Default provided as
contemplated by Section 3.01 with respect to Securities of
that series.
The Company shall deliver to the Trustee, within 90 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any event which is or with the giving of notice or the lapse of time would
become an event which is or with the giving of notice or the lapse of time would
become an Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.
As used in the Indenture, the term "Bankruptcy Law" means
Title 11, U.S. Code, or any similar federal or state bankruptcy, insolvency,
reorganization or other law for the relief of debtors. As used in the Indenture,
the term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
Section 5.02. Acceleration; Rescission and Annulment. If an
Event of Default with respect to the Securities of any
60
series at the time Outstanding occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of all of the Outstanding
Securities of that series by written notice to the Company (and if given by the
Holders, to the Trustee), may declare the principal (or, if the Securities of
that series are Original Issue Discount Securities or Indexed Securities, such
portion of the Original principal amount as may be specified in the terms of
that series) of and accrued interest, if any, on all the Securities of that
series to be due and payable and upon any such declaration such principal (or,
in the case of Original Issue Discount Securities or Indexed Securities, such
specified amount) and interest, if any, shall be immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a 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 aggregate
principal amount of the Outstanding Securities of that series, by written notice
to the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) in the currency or currency unit in which that
series of Securities is payable, all overdue interest on all
Securities of that series and any related coupons and any
Additional Amounts,
(B) in the currency or currency unit in which that
series of Securities is payable, the principal of (and
premium, if any, on) any Securities of that series which have
become due otherwise than by such declaration of acceleration
and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities and any Additional
Amounts payable, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
61
(2) all existing Defaults and Events of Default with respect
to Securities of that series, other than the non-payment of the
principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 5.07. No such rescission shall affect any subsequent default
or impair any right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(1) default is made in the payment of any interest on
any Security or coupon, if any, when such interest or any
Additional Amounts becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, if any, the whole amount then due and
payable on such Securities and coupons for principal, premium, if any, and
interest and any Additional Amounts, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal,
premium, if any, and on any overdue interest and any Additional Amounts, at the
rate or rates prescribed therefor in such Securities or coupons, if any, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to secure any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents and take such
actions authorized under the Trust Indenture Act as may be necessary or
advisable in order to have the claims of the Trustee and the Holders of
Securities allowed
62
in any judicial proceedings relating to the Company, its creditors or its
property. In particular, the Trustee shall be authorized to collect and receive
any moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.09.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of a Security or coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding; provided, however, that
the Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors' or other similar
committee.
Section 5.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee, in its own name as an
express trust, without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto and any recovery of
judgment shall, after provision for the reasonable fees and expenses of the
Trustee and its counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect to which judgment was recovered.
Section 5.06. Delay or Omission Not Waiver. No delay or
omission by the Trustee or any Holder of any Securities to exercise any right or
remedy accruing upon an Event of Default shall impair any such right or remedy
or constitute a waiver of or acquiescence in any such Event of Default. Every
right and remedy given by this Article or by law to the Trustee or to the
Holders of Securities or coupons may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders of Securities
or coupons, as the case may be.
Section 5.07. Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of Outstanding
63
Securities of any series by written notice to the Trustee may waive on behalf of
the Holders of all Securities of such series and any related coupons a past
Default or Event of Default with respect to that series and its consequences
except (i) a Default or Event of Default in the payment of the principal of,
premium, if any, or interest or any Additional Amounts on any Security of such
series or any coupon appertaining thereto or (ii) in respect of a covenant or
provision hereof which pursuant to Section 8.02 cannot be amended or modified
without the consent of the Holder of each Outstanding Security of such series
affected. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture.
Section 5.08. Control by Majority. The Holders of a majority
in aggregate principal amount of the Outstanding Securities of each series
affected (with each such series voting as a class) shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it with
respect to Securities of that series; provided, however, that (i) the Trustee
may refuse to follow any direction that conflicts with law or this Indenture
(ii) the Trustee may refuse to follow any direction that is unduly prejudicial
to the rights of the Holders of Securities of such series not consenting or of
any other series for which the Trustee is trustee, or that would in the good
faith judgment of the Trustee have a substantial likelihood of involving the
Trustee in personal liability and (iii) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.
Prior to the taking of any action hereunder, the Trustee shall be entitled to
reasonable indemnification satisfactory to the Trustee against all losses and
expenses caused by taking or not taking such action. This paragraph shall be in
lieu of Section 316(a)(1)(A) of the Trust Indenture Act and such Section
316(a)(1)(A) is hereby expressly excluded from this Indenture, as permitted by
the Trust Indenture Act.
Section 5.09. Limitation on Suits by Holders. No Holder of any
Security of any series or any coupons appertaining thereto shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) the Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
the Securities of that series;
64
(2) the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series
have made a written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee indemnity reasonably satisfactory to the Trustee
against any loss, liability or expense to be, or which may be,
incurred by the Trustee in pursuing the remedy;
(4) the Trustee for 60 days after its receipt of such
notice, request and the offer of indemnity has failed to
institute any such proceedings; and
(5) during such 60-day period, the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of that series have not given to the Trustee a
direction inconsistent with such written request.
No one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security or coupon to receive payment of principal of, premium, if any,
and, subject to Sections 3.05 and 3.07, interest on the Security and any
Additional Amounts, on or after the respective due dates expressed in the
Security (or, in case of redemption, on the redemption dates), and the right of
any Holder of a coupon to receive payment of interest due as provided in such
coupon, or, subject to Section 5.09, to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section 5.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, and any Additional Amounts upon presentation of the Securities or
coupon
65
or both and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: to the Trustee for amounts due under Section
6.09;
SECOND: subject to the provisions of Article XII, to
Holders of Securities and coupons in respect of which or for the
benefit of which such money has been collected for amounts due and
unpaid on such Securities for principal of, premium, if any, and
interest or any Additional Amounts, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal, premium, if any, and interest or Additional
Amounts, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 5.11. At least 15 days before such
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders of Securities
and coupons shall continue as though no such proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section
3.06, no right or remedy herein conferred upon or reserved to the Trustee or the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
existing right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
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Section 5.14. Waiver of Usury, Stay or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 5.15. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit having due regard to the merits and good faith of the
claims or defenses made by the party litigant, provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company or by the Trustee.
Section 5.16. Judgment Currency. If, for the purpose of
obtaining a judgment in any court with respect to any obligation of the Company
hereunder or under any Security or any related coupon, it shall become necessary
to convert into any other currency or currency unit any amount in the currency
or currency unit due hereunder or under such Security or coupon, then such
conversion shall be made by the Exchange Rate Agent at the Market Exchange Rate
as in effect on the date of entry of the judgment (the "Judgment Date"). If
pursuant to any such judgment, conversion shall be made on a date (the
"Substitute Date") other than the Judgment Date and there shall occur a change
between the Market Exchange Rate as in effect on the Judgment Date and the
Market Exchange Rate as in effect on the Substitute Date, the Company agrees to
pay such additional amounts (if any) as may be necessary to ensure that the
amount paid is equal to the amount in such other currency or currency unit
which, when converted at the Market Exchange Rate as in effect on the Judgment
Date, is the amount due hereunder or under such Security or coupon. Any amount
due from the Company, under this Section 5.16 shall be due as a separate debt
and is not to be affected by or merged into any judgment being obtained for any
other sums due hereunder or in respect of any Security or coupon.
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In no event, however, shall the Company be required to pay more in the currency
or currency unit due hereunder under such Security or coupon at the Market
Exchange Rate as in effect on the Judgment Date than the amount of currency or
currency unit stated to be due hereunder or under such Security or coupon so
that in any event the Company's obligations hereunder or under such Security or
coupon will be effectively maintained as obligations in such currency or
currency unit, and the Company shall be entitled to withhold (or be reimbursed
for, as the case may be) any excess of the amount actually realized upon any
such conversion on the Substitute Date over the amount due and payable on the
Judgment Date.
ARTICLE VI
The Trustee
Section 6.01. Certain Duties and Responsibilities of the
Trustee. (a) The Trustee's duties and responsibilities under this Indenture
shall be governed by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 6.02. Rights of Trustee. Subject to the provisions
of the Trust Indenture Act:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper party or parties. The Trustee need
not investigate any fact or matter stated in the document.
(b) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order (other
than delivery of any Security, together with any coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 3.03 which
shall be sufficiently evidenced as provided therein) and any resolution
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of the Board of Directors may be sufficiently evidenced by a Board Resolution.
(c) Before the Trustee acts or refrains from acting, it may
consult with counsel of its selection and/or require an Officers' Certificate.
The Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, the written or oral advice of counsel
reasonably acceptable to the Company and the Trustee (which advice, if oral,
counsel shall promptly confirm in writing to the Trustee), a certificate of an
Officer or Officers delivered pursuant to Section 1.02, an Officers' Certificate
or an Opinion of Counsel.
(d) The Trustee may act through agents or attorneys and shall
not be responsible for the misconduct or negligence of any agent or attorney
appointed with due care.
(e) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
(f) 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 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.
(g) 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 seem 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.
(h) 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.
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(i) 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 6.02.
Section 6.03. Trustee May Hold Securities. The Trustee, any
Paying Agent, any Registrar or any other agent of the Company, in its in
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Company, an Affiliate or Subsidiary with the same
rights it would have if it were not Trustee, Paying Agent, Registrar or such
other agent.
Section 6.04. 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 upon in writing with
the Company.
Section 6.05. Trustee's Disclaimer. The recitals contained
herein and in the Securities, except the Trustee's certificate of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representation as to the validity or accuracy of this Indenture or the
Securities or any coupon. The Trustee shall not be accountable for the Company's
use of the proceeds from the Securities or for monies paid over to the Company
pursuant to the Indenture.
Section 6.06. Notice of Defaults. If a Default occurs and is
continuing with respect to the Securities of any series and if it is known to a
Responsible Officer of the Trustee, the Trustee shall, within 90 days after it
occurs, transmit by mail to the Holders of Securities of such series, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of all Defaults known to it unless such Default shall have been cured or
waived; provided, however, that except in the case of a Default in payment on
the Securities of any series, the Trustee may withhold the notice if and so long
as the board of directors, the executive committee or a committee of its
Responsible Officers in good faith determines that withholding such notice is in
the interests of Holders of Securities of that series; and provided, further,
that in the case of any Default of the character specified in Section 5.01(3)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
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Section 6.07. Reports by Trustee to Holders. The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. To the extent that any such
report is required by the Trust Indenture Act with respect to any 12-month
period, such report shall cover the 12-month period ending March 15 and shall be
transmitted by the next succeeding March 15. A copy of each such report shall,
at the time of such transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when any Securities are
listed on any stock exchange.
Section 6.08. Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee
semiannually on or before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list, in such form and
as of such date as the Trustee may reasonably require containing all the
information in the possession or control of the Registrar, the Company or any of
its Paying Agents other than the Trustee as to the names and addresses of
Holders of Securities of each such series. If there are Bearer Securities of any
series Outstanding, even if the Trustee is the Registrar, the Company shall
furnish to the Trustee such a list containing such information with respect to
Holders of such Bearer Securities only.
Section 6.09. Compensation and Indemnity. (a) The Company
shall pay to the Trustee from time to time such reasonable compensation for its
services as the Company and the Trustee shall agree in writing from time to
time. The Trustee's compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it in connection
with the performance of its duties under this Indenture, except any such expense
as may be attributable to its negligence or bad faith. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents and
counsel.
(b) The Company shall indemnify the Trustee and any
Predecessor Trustee, for and hold it harmless against, any loss or liability
damage, claim or reasonable expense including taxes (other than taxes based upon
or determined or measured by the income of the Trustee) incurred by it arising
out of or in
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connection with its acceptance or administration of the trust or trusts
hereunder, including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
(c) The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or bad
faith.
(d) To secure the payment obligations of the Company pursuant
to this Section, the Trustee shall have a lien prior to the Securities of any
series on all money or property held or collected by the Trustee, except that
held in trust to pay principal, premium, if any, any interest and any Additional
Amounts, on particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(6) or Section
5.01(7), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture or the resignation or removal of the Trustee.
Section 6.10. Replacement of Trustee. (a) The resignation or
removal of the Trustee and the appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of any series by giving written notice thereof to the Company.
(c) The Holders of a majority in aggregate principal amount of
the Outstanding Securities of any series may remove the Trustee with respect to
that series by so notifying the Trustee and the Company and may appoint a
successor Trustee for such series with the Company's consent.
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(d) If at any time:
(1) the Trustee fails to comply with Section 310(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 any least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.12 of this Indenture or Section 310(a) of the Trust Indenture
Act and shall fail to resign after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder
of a Security for at least six months; or
(3) the Trustee becomes incapable of acting, is
adjudged a bankrupt or an insolvent or a receiver or public officer
takes charge of the Trustee or its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then, in any such case,
(i) the Company by or pursuant to a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section
315(e) of the Trust Indenture Act, 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.
(e) If the instrument of acceptance by a successor Trustee
required by Section 6.11 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation or removal, the Trustee
resigning or being removed may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to Securities of
one or more series, the Company, by or pursuant to Board Resolution, shall
promptly appoint a successor Trustee with respect to the Securities to that or
those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be
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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
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. 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 6.11, 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.
Section 6.11. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee, without further act, deed or
conveyance, shall become vested with all the rights, powers 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 such successor Trustee shall execute and
deliver an indenture supplemental hereto wherein such successor Trustee shall
accept such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, such
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) 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 or 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
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the retiring Trustee, and (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust 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 another 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 the 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.
(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 for notices to the Holders of Securities in Section 1.06.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 6.12. Eligibility; Disqualification. There shall at
all times be a Trustee hereunder which shall be eligible to act as Trustee under
Section 310(a)(1) of the Trust Indenture Act and shall have a combined capital
and surplus of at least $50,000,000. If such Trustee publishes reports of
condition at least annually, pursuant to law or the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority,
then, for the purposes of this Section, the
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combined capital and surplus of such Trustee shall be deemed to be its combined
capital and surplus as set forth in its most 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 heretofore specified in this Article.
Section 6.13. 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 to 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 6.14. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue, exchange,
registration of transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which Instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 3.01, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than
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$50,000,000 and subject to supervision or examination by Federal or State
authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 1.06. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
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If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
----------------------------------------
as Trustee
By:
-------------------------------------
as Authenticating Agent
By:
-------------------------------------
Authorized Signatory
ARTICLE VII
Consolidation, Merger or Sale by the Company
Section 7.01. Consolidation, Merger or Sale of Assets
Permitted. The Company shall not consolidate with or merge with or into, or
sell, transfer or lease all or substantially all of its assets to, any Person
unless:
(1) the Person formed by or surviving any such
consolidation or any merger (if other than the Company), or to which
such transfer or lease shall have been made, is organized and existing
under the laws of the United States, any State thereof or the District
of Columbia;
(2) the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
transfer or lease shall have been made, expressly assumes by
supplemental indenture hereto executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal, premium, if any, interest, if any and any Additional
Amounts, with respect to all of the Securities and the performance or
observance of every covenant under this
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Indenture and the Securities on the part of the Company to be performed
under the Securities, the coupons and this Indenture;
(3) immediately after giving effect to the
transaction and treating any indebtedness which becomes an obligation
of the Company or a Subsidiary of the Company as a result of such
transaction as having been incurred by the Company or such Subsidiary
at the time of such transaction no Default or Event of Default exists
and is continuing; and
(4) if, as a result of any such consolidation or
merger or such conveyance, transfer or lease, properties or assets of
the Company would become subject to a mortgage, pledge, lien, security
interest or other encumbrance which would not be permitted by the
Securities of any series, the Company or such successor Person, as the
case may be, shall take such steps as shall be necessary effectively to
secure such Securities equally and ratably with all indebtedness
secured thereby.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officers' Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and such supplemental indenture
comply with this Indenture and that all conditions precedent to the consummation
of the transaction under this Indenture have been met.
In the event of the assumption by a successor Person as
provided in clause (2) above, such successor Person shall succeed to and be
substituted for the Company hereunder and under the Securities with the same
effect as if it had been named hereunder and thereunder and, except in the case
of a lease, any coupons appertaining thereto and all such obligations of the
Company shall terminate.
ARTICLE VIII
Supplemental Indentures
Section 8.01. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee at any time and from time to time, may enter
into indentures supplemental hereto, in form reasonably satisfactory to the
Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the covenants
and obligations of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with
respect to all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Bearer Securities (including, without limitation to provide
that Bearer Securities may be registrable as to principal only) or to
facilitate the issuance of Securities in global form; or
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision; or
(6) to 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 6.11; or
(9) if allowed without penalty under applicable laws
and regulations, to permit payment in the United States
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(including any of the States and District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction of principal, premium, if any, or interest, if any, on
Bearer Securities or coupons, if any; or
(10) 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 cure an ambiguity or correct any mistake,
provided such action shall not adversely affect the interests of the
Holders of Securities of any series in any material respect.
Section 8.02. Supplemental Indentures with Consent of Holders.
With the written consent of the Holders of a majority of the aggregate principal
amount of the Outstanding Securities of each series adversely affected by such
supplemental indenture (with the Securities of each series voting as a class),
the Company, when authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto to add any provisions to or
to change or eliminate any provisions of this Indenture or of any other
indenture supplemental hereto or to modify the rights of the Holders of such
Securities; provided, however, that without the consent of the Holder of each
Outstanding Security affected thereby, a supplemental indenture under this
Section may not:
(1) change the Stated Maturity of the principal of,
or premium, if any, on, or any installment of principal of or premium,
if any, or interest on, or any Additional Amounts on, any Security, or
reduce the principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption, repurchase or repayment
thereof, or change the manner in which the amount of any principal
thereof or premium, if any, or interest or Additional Amounts thereon
is determined or reduce the amount of the principal of any Original
Issue Discount Security or Indexed Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, or change the Place of Payment where or the
currency in which any Securities or any premium or the interest or
Additional Amounts thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof
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(or, in the case of redemption, on or after the Redemption Date);
(2) reduce the percentage in principal amount of the
Outstanding Securities affected thereby, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;
(3) change any obligation of the Company to maintain
an office or agency in the places and for the purposes specified in
Section 9.02; or
(4) make any change in Section 5.07 or this 8.02
except to increase any percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived with the
consent of the Holders of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.02 for the Holders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities of one or more series shall be set
forth in a supplemental indenture that complies with the Trust Indenture Act as
then in effect.
Section 8.04. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which
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affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 8.05. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
Section 8.06. Reference in Securities to Supplemental
Indentures. Securities, including any coupons, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities including any
coupons of any series so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities including any coupons of such series.
Section 8.07. Effect on Senior Indebtedness. No supplemental
indenture shall adversely affect the rights of any holder of Senior Indebtedness
under Article XII without the consent of such holder.
ARTICLE IX
Covenants
Section 9.01. Payment of Principal, Premium, if any, and
Interest. The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of,
premium, if any, and interest together with Additional Amounts, if any, on the
Securities of that series in accordance with the terms of the Securities of such
series, any coupons appertaining thereto and this Indenture. An installment of
principal, premium, if any, or interest, if any, of any Additional Amounts shall
be considered paid on the date it is due if the Trustee or Paying Agent holds on
that date money designated for and sufficient to pay the installment.
Section 9.02. Maintenance of Office or Agency. If Securities
of a series are issued as Registered Securities, the Company will maintain in
each Place of Payment for any series of
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Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. If Securities of a series are issuable as Bearer Securities, the
Company will maintain, (i) subject to any laws or regulations applicable
thereto, an office or agency in a Place of Payment for that series which is
located outside the United States where Securities of that series and related
coupons may be presented and surrendered for payment; provided, however, that if
the Securities of that series are listed on The International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent for
the Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange, and (ii) subject to any laws or
regulations applicable thereto, an office or agency in a Place by Payment for
that series which is located outside the United States, where Securities of that
series may be surrendered for exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture maybe
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
Unless otherwise specified as contemplated by Section 3.01, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States, by check mailed to any
address in United States, by transfer to an account located in the United States
or upon presentation or surrender in the United States of a Bearer Security or
coupon for payment, even if the payment would be credited to an account located
outside the United States; provided, however, that, if the Securities of a
series are denominated and payable in Dollars, payment of principal of and any
premium or interest on any such Bearer Security shall be made at the office of
the Company's Paying Agent located within the United States, if (but only if)
payment in Dollars of the full amount of such principal, premium or interest, as
the case may
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be, at all offices or agencies outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities (including any coupons, if any)
of one or more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or an agency in each Place of Payment
for Securities (including any coupons, if any) of any series for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency. Unless otherwise specified as contemplated by Section 3.01,
the Trustee shall initially serve as Paying Agent.
If and so long as the Securities of any series (i) are
denominated in a currency other than Dollars or (ii) may be payable in currency
other than Dollars, or so long as it is required under any other provision of
this Indenture, then the Company will maintain with respect to each such series
of Securities or as so required, an Exchange Rate Agent.
Section 9.03. Money for Securities Payments to be Held in
Trust; Unclaimed Money. If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each due
date of the principal of, premium, if any, or interest or any Additional Amount,
on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal,
premium, if any, or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of, premium, if any, or interest or Additional Amounts on
Securities of that series in trust for the benefit of the Persons
entitled thereto until such sums
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shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of that series) in
the making to any payment of principal, premium, if any, or interest or
Additional Amounts on the Securities; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge or defeasance of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same terms as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of any principal, premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, or interest or Additional Amount has
become due and payable shall be paid to the Company 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 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.
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Section 9.04. Corporate Existence. Subject to Article VII, the
Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its existence, rights (charter and statutory) and
franchises; provided, however, that the Company shall not be required to
preserve 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 and is not reasonably
likely to be disadvantageous in any material respect to the Holders.
Section 9.05. Reports by the Company. (a) At the Company's
expense, regardless of whether the Company is required to furnish such reports
to its stockholders pursuant to the rules and regulations of the Commission, for
so long as there are Outstanding Securities, the Company shall furnish to the
Holders and the Trustee (i) within 45 days after the end of each of the first
three fiscal quarters of each fiscal year and 90 days of the end of each fiscal
year all quarterly and annual financial information, as the case may be, that
would be required to be contained in a filing with the Commission on Forms 10-Q
and 10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of operations of
the Company and its Subsidiaries, and, with respect to the annual information
only, a report thereon by the Company's certified independent accountants and
(ii) all current reports that would be required to be filed with the Commission
on Form 8- K if the Company were required to file such reports.
(b) In addition, whether or not required by the rules and
regulations of the Commission, the Company will file a copy of all such
information and reports with the Commission for public availability (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request.
Section 9.06. Annual Review Certificate; Notice of Defaults or
Events of Default. The Company covenants and agrees to deliver to the Trustee,
within 90 days after the end of each fiscal year of the Company ending after the
date hereof, a certificate from the principal executive officer, principal
financial officer or principal accounting officer of the Company, covering the
preceding calendar year, stating whether or not to the best knowledge of the
signer(s) thereof the Company is in default in the performance, observance or
fulfillment of or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Company shall be in default, specifying
all such defaults and the nature and status
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thereof of which they may have knowledge. For the purposes of this Section 9.06,
compliance shall be determined without regard to any grace period or requirement
of notice provided pursuant to the terms of this Indenture.
Section 9.07. Payment of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which adequate
reserves (in the good faith judgment of the Board of Directors) have been made.
Section 9.08. Maintenance of Properties. The Company will
cause all properties owned by the Company or any Subsidiary or used or held for
use in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 9.09. Maintenance of Bank's Status as FDIC-Insured
Institution. The Company shall use its best efforts to maintain the Bank's
status as an FDIC-insured depository institution.
Section 9.10 Insurance. The Company will at all times maintain
and will cause each of its Subsidiaries to maintain (either in the name of the
Company or in such Subsidiary's own name) with financially sound and reputable
insurers, insurance on all its properties in such amounts as management of the
Company reasonably determines is appropriate under the circumstances.
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ARTICLE X
Redemption
Section 10.01. Applicability of Article. Securities (including
coupons, if any) of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.01 for Securities of any series) in
accordance with this Article.
Section 10.02. Election to Redeem Notice to Trustee. The
election of the Company to redeem any Securities, including coupons, if any,
shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of less than all the Securities or
coupons, if any, of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
Redemption Price, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (ii) pursuant to an election of the Company which
is subject to a condition specified in the terms of such Securities, the Company
shall furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction or condition.
Section 10.03. Selection of Securities to be Redeemed. Unless
otherwise specified as contemplated by Section 3.01, if less than all the
Securities (including coupons, if any) of a series with the same terms are to be
redeemed, the Trustee, not more than 45 days prior to the redemption date, shall
select the Securities of the series to be redeemed in such manner as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. The Trustee shall make the selection
from Securities of the series that are Outstanding and that have not previously
been called for redemption and may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities, including
coupons, if any, of that series or any integral multiple thereof) of the
principal amount of Securities, including coupons, if any, of such series of a
denomination
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larger than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities
selected by the Trustee for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed. If
the Company shall so direct, Securities registered in the name of the Company,
any Affiliate or any Subsidiary thereof shall not be included in the Securities
selected for redemption. If less than all the Securities of any series with
differing issue dates, interest rates and stated maturities are to be redeemed,
the Company in its sole discretion shall select the particular Securities to be
redeemed and shall notify the Trustee in writing thereof at least 45 days prior
to the relevant redemption date.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
coupons, if any) shall relate, in the case of any Securities (including coupons,
if any) redeemed or to be redeemed only in part, to the portion of the principal
amount of such Securities (including coupons, if any) which has been or is to be
redeemed.
Section 10.04. Notice of Redemption. Unless otherwise
specified as contemplated by Section 3.01, notice of redemption shall be given
in the manner provided in Section 1.06 not less than 30 days nor more than 60
days prior to the Redemption Date to the Holders of the Securities to be
redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of a
series are to be redeemed, the identification (and in the case of
partial redemption, the principal amounts) of the particular Security
or Securities to be redeemed;
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the Holder
will receive, without a charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed;
(5) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the
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Redemption Date, are to surrendered for payment for the Redemption
Price;
(6) that Securities of the series called for
redemption and all unmatured coupons, if any, appertaining thereto must
be surrendered to the Paying Agent to collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption
Price will become due and payable upon each such Security, or the
portion thereof, to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date;
(8) that the redemption is for a sinking fund, if
such is the case;
(9) that unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to the
Redemption Date or the amount of any such missing coupon or coupons
will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Company, the Trustee and any Paying Agent
is furnished; and
(10) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
Section 10.05. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article XI, segregate and hold in
trust as provided in Section 9.03) an amount of money in the currency or
currencies (including currency unit or units) in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.01 for
the Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless the Redemption Date shall be an Interest
Payment Date) interest accrued to the Redemption Date on, all Securities or
portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund
payment obligation from being satisfied by delivering and
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crediting Securities (including Securities redeemed otherwise than through a
sinking fund), the Company may deliver such Securities to the Trustee for
crediting against such payment obligation in accordance with the terms of such
Securities and this Indenture.
Section 10.06. Securities Payable on Redemption Date. Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the coupons for any such interest
appertaining to any Bearer Security so to be redeemed, except to the extent
provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including coupons, if any, for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest (and any
Additional Amounts) to the Redemption Date; provided, however, that installments
of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only at an office or agency located outside the
United States and its possessions (except as otherwise provided in Section 9.02)
and, unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender to coupons for such interest; and provided, further
that, unless otherwise specified as contemplated by Section 3.01, installments
of interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest (and any Additional Amounts) represented by
coupons shall be payable only
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at an office or agency located outside of the United States (except as otherwise
specified pursuant to Section 9.02) and, unless otherwise provided as
contemplated by Section 3.01, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 10.07. Securities Redeemed in Part. Upon surrender of
a Registered Security that is redeemed in part at any Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of that Security, without service charge a new Registered
Security or Securities of the same series, having the same form, terms and
Stated Maturity, in any authorized denomination equal in aggregate principal
amount to the unredeemed portion of the principal amount of the Security
surrendered.
ARTICLE XI
Sinking Funds
Section 11.01. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 11.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 11.02. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding
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Securities of a series (other than any previously called for redemption)
together, in the case of Bearer Securities of such series, with all unmatured
coupons appertaining thereto and (ii) may apply as a credit Securities of a
series which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 11.03. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied be delivering and crediting Securities of that series pursuant to
Section 11.02 and will also deliver to the Trustee any Securities to be so
delivered to the extent it has not previously done so. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 10.03 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided in
Section 10.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
10.06 and 10.07.
ARTICLE XII
Subordination of Securities
Section 12.01. Agreement to Subordinate. The Company, for
itself, its successors and assigns, covenants and agrees, and each Holder of
Securities, by his acceptance thereof, likewise covenants and agrees, that the
payment of the principal of (and premium, if any), interest on and any
Additional Amounts payable in respect of each and all of the Securities is
hereby expressly subordinated, to the extent and in the manner hereinafter set
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forth in this Article XII (subject to the provisions of Article IV), in right of
payment to the prior payment in full of all Senior Indebtedness.
Section 12.02. Distribution on Dissolution, Liquidation and
Reorganization. In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company or its property, (ii) any proceeding for the
liquidation, dissolution or other winding-up of the Company, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Company for the benefit of creditors or (iv) any
other marshaling of the assets and liabilities of the Company then, and in any
such event specified in (i), (ii), (iii) or (iv) (each such event, if any,
herein sometimes referred to as a "Proceeding") (subject to the power of a court
of competent jurisdiction to make other equitable provision reflecting the
rights conferred in this Indenture upon the Senior Indebtedness and the holders
thereof with respect to the Securities and the Holders thereof by a lawful plan
or reorganization under applicable Bankruptcy Law,
(a) the holders of all Senior Indebtedness shall first be
entitled to receive payment in full of the principal thereof, premium,
if any, any interest or any Additional Amounts required in respect of
certain taxes, and any interest therein, due thereon or provision must
first be made for such payment in cash or cash equivalents or any other
manner acceptable to the holders of such Senior Indebtedness before any
payment or distribution, whether in cash, securities or property
(including any payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of the
Company subordinated to the payment of the Securities, such payment or
distribution being referred to as a "Junior Subordinated Payment," but
excluding any payment or distribution of securities of the Company
provided for by a plan of reorganization or readjustment authorized by
an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable Bankruptcy Law or of any
other corporation provided for by such plan of reorganization or
readjustment which securities are subordinated in right of payment to
all then outstanding Senior Indebtedness to substantially the same
extent as the Securities are so subordinated as provided in this
Article), shall be made by the Company on account of principal,
premium, interest or Additional Amounts of or on the Securities or
interest on overdue amounts thereof; and
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(b) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities,
including any Junior Subordinated Payment, to which the Holders of the
Securities or the Trustee would be entitled except for the provisions
of this Article (and excluding any payment or distribution of
securities of the Company provided for by a plan of reorganization or
readjustment authorized by an order or decree of a court of competent
jurisdiction in a reorganization proceeding under any applicable
Bankruptcy Law or of any other corporation provided for by such plan of
reorganization or readjustment which securities are subordinated in
right of payment to all then outstanding Senior Indebtedness to
substantially the same extent as the Securities are so subordinated as
provided in this Article) shall be paid by the liquidating trustee or
agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
to the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may
have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the principal of, premium, if any, interest or
Additional Amounts required in respect of certain taxes, and any
interest thereon, on the Senior Indebtedness held or represented by
each, to the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, shall be received
by the Trustee or the Holders of the Securities before all Senior
Indebtedness is paid in full, then, and in such event such payment or
distribution shall be paid over to the holders of such Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall
have been paid in full, after giving effect to any concurrent payment
or distribution to the holders of such Senior Indebtedness. As used in
this Article, the phrase "payment in full" (or any similar phrase),
when used to refer to the payment of Senior Indebtedness, shall mean
payment in full of the aggregate
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amount of such Senior Indebtedness then outstanding in cash, securities
or other property.
The consolidation of the Company with, or the merger of the
Company with or into, another Person or the liquidation or dissolution of the
Company following the conveyance or transfer of all or substantially all of its
properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article VII shall not be deemed a Proceeding for the
purposes of this Section if the Person formed by such consolidation with or into
which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article VII.
Section 12.03. Prior Payment to Senior Indebtedness Upon
Acceleration of Securities.
In the event that any Securities of a series are declared due
and payable before their Stated Maturity, then and in such event the holders of
the Senior Indebtedness outstanding at the time such Securities so became due
and payable shall be entitled to receive payment in full of all amounts due on
or in respect of such Senior Indebtedness (including any amounts due upon
acceleration), or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character, whether in cash, properties or
securities (including any Junior Subordinated Payment) by the Company on account
of the principal of, or premium, if any, or any interest or Additional Amounts
on such Securities or on account of the purchase or other acquisition of such
Securities by the Company or any Subsidiary of the Company.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 12.02 would be applicable.
Section 12.04. No Payment on Securities in Event of Default
on Senior Indebtedness. The Company shall not make or agree to make any direct
or indirect payment (in cash, property or securities, by set-off or otherwise)
on account of any
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Securities or interest thereon or in respect of any repayment, redemption,
retirement, purchase or other acquisition of any Securities if:
(i) a default in the payment of any principal, interest, if
any, or premium, if any, or any Additional Amounts on any Senior
Indebtedness when the same becomes due and payable, whether at maturity
or at a date fixed for repayment or declaration or otherwise, occurs
and is continuing in the agreement, indenture or other document
governing such Senior Indebtedness, or any judicial proceeding is
pending to determine whether any such default has occurred; or
(ii) any other event of default occurs and is continuing with
respect to any Senior Indebtedness permitting the holders thereof to
accelerate the maturity thereof and written notice of such event of
default (requesting that payments on the Securities cease) is given to
the Trustee from a Person who may give it pursuant to Section 12.09 (a
"Payment Blockage Notice"). If the Trustee receives any such Payment
Blockage Notice, no subsequent Payment Blockage Notice shall be
effective for purposes of this Section unless and until at least 360
days have elapsed since the first day of effectiveness of the
immediately prior Payment Blockage Notice. No nonpayment default that
existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall have been
cured or waived for a period of not less than 180 days.
The Company may resume or agree to resume direct or indirect
payments (in cash, property or securities, by set-off or otherwise) on account
of any Securities or interest thereon or in respect of any repayment,
redemption, retirement, purchase or other acquisition of any Securities if:
(i) in the case of a payment default referred to in clause (i)
above, upon the date on which the default is cured or waived or
otherwise ceases to exist, unless another default, event of default or
other event that would prohibit such payment under such clause (i)
shall have occurred and be continuing; or
(ii) in the case of a nonpayment default referred to in clause
(ii) above, the earlier of the date on which such nonpayment default is
cured or waived or otherwise ceases to exist or 179 days after the date
on
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which the applicable Payment Blockage Notice is received by the
Trustee.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section, and if such fact shall, at or prior
to the time of such payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 12.02 would be applicable.
Section 12.05. Payments on Securities Permitted. Nothing
contained in this Indenture or in any of the Securities shall (a) affect the
obligation of the Company to make, or prevent the Company from making, at any
time except during the pendency of any Proceeding referred to in Section 12.02
or under the conditions described in Sections 12.03 and 12.04, payments of
principal, premium, interest or Additional Amounts, and any interest thereon, of
or on the Securities or (b) prevent the application by the Trustee of any moneys
deposited with it hereunder to the payment of or on account of the principal,
premium, interest or Additional Amounts, and any interest thereon, of or on the
Securities unless the Trustee shall have received at its Corporate Trust Office
written notice of any event prohibiting the making of such payment more than two
Business Days prior to the date fixed for such payment or prior to the execution
of an instrument to satisfy and discharge this Indenture based upon the deposit
of funds under Section 4.01(1)(B).
Section 12.06. Subrogation to Rights of Holders of Senior
Indebtedness. Subject to the payment in full of all amounts due or to become due
on all Senior Indebtedness, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of the Company which by its express terms is subordinated to
Senior Indebtedness of the Company to substantially the same extent as the
Securities are subordinated to the Senior Indebtedness and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Indebtedness) to all of the rights of the holders of such Senior
Indebtedness to receive payments and
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distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of (and premium, if any) and any interest and
Additional Amounts on the Securities shall be paid in full. For purposes of such
subrogation or assignment, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
Section 12.07. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities of any series on
the one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in any Securities of
any series is intended to or shall (a) impair, as between the Company and the
Holders of the Securities of a series, the obligations of the Company, which are
absolute and unconditional, to pay to the Holders of the Securities the
principal of, premium, if any, and any interest and Additional Amounts on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than their rights
in relation to the holders of Senior Indebtedness; or (c) prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, including, without limitation,
filing and voting claims in any Proceeding, subject to the rights, if any, under
this Article of the holders of Senior Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
Section 12.08. Authorization of Holders of Securities to
Trustee to Effect Subordination. Each Holder of Securities by his acceptance
thereof authorizes and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
Section 12.09. Notices to Trustee. The Company shall give
prompt written notice to a Responsible Officer of the
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Trustee located at the Corporate Trust Office of the Trustee of any fact known
to the Company which would prevent the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provisions of this Indenture, neither the Trustee nor any
Paying Agent (other than the Company) shall be charged with knowledge of the
existence of any Senior Indebtedness or of any event which would prohibit the
making of any payment of moneys to or by the Trustee or such Paying Agent,
unless and until the Trustee or such Paying Agent shall have received (in the
case of the Trustee, at its Corporate Trust Office) written notice thereof from
the Company or from the holder of any Senior Indebtedness or from the trustee
for any such holder, together with proof satisfactory to the Trustee of such
holding of Senior Indebtedness or of the authority of such trustee; provided,
however, that if at least two Business Days prior to the date upon which by the
terms hereof any such moneys may become payable for any purpose (including,
without limitation, the payment of the principal, premium, interest or
Additional Amounts, of or on any Security, or any interest thereon) or the date
on which the Trustee shall execute an instrument acknowledging satisfaction and
discharge of this Indenture, the Trustee shall not have received with respect to
such moneys or the moneys deposited with it as a condition to such satisfaction
and discharge the notice provided for in this Section 12.09, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such moneys and to apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary, which may be received by it on or after such two Business Days prior
to such date. The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such a
notice has been given by a holder of Senior Indebtedness or a trustee on behalf
of any such holder. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
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Section 12.10. Trustee as Holder of Senior Indebtedness. The
Trustee shall be entitled to all the rights set forth in this Article in respect
of any Senior Indebtedness at any time held by it to the same extent as any
other holder of Senior Indebtedness and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.
Section 12.11. No Waiver of Subordination Provisions. No right
of any present or future holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless or any knowledge thereof that any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the immediately
preceding paragraph, the holders of Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to such Holders of
the Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of such Holders of the Securities to
the holders of Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 12.12. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Article
VI, and the Holders of the Securities shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of the Securities, for the purpose
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of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
Section 12.13. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee, in its capacity as trustee under this Indenture,
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
Section 12.14. Article Applicable to Paying Agents. In case at
any time any Paying Agent other than the Trustee shall have been appointed bu
the Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
Section 12.15. Certain Conversions or Exchanges Deemed
Payment. For the purposes of this Article only, (a) the issuance and delivery of
junior securities upon exchange of Securities shall not be deemed to constitute
a payment or distribution on account of the principal of, premium, if any, or
any interest or Additional Amounts on Securities or on account of the purchase
or other acquisition or Securities, and (b) the payment, issuance or delivery of
cash, property or securities (other than junior securities) upon exchange of a
Security shall be deemed to constitute payment on account of the principal of
such Security. For purposes of this Section, the term "junior securities" means
(i) shares of any stock of any class of the Company and (ii) securities of the
Company which are subordinated in right of payment to all Senior Indebtedness
which may be outstanding at the time of issuance or delivery of such securities
to substantially the same extent as, or to a greater extent than, Securities are
so subordinated as provided in this Article.
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This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one instrument.
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.
OCWEN FINANCIAL CORPORATION
By:
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Name:
Title:
{Seal}
Attest:
By:
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Name:
Title:
NORWEST BANK MINNESOTA, N.A.
By:
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Name:
Title:
{Seal}
Attest:
By:
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Name:
Title:
