1
Exhibit 4.4
WELLPOINT HEALTH NETWORKS INC.
AND
[ ]
Trustee
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Subordinated Debt Securities
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INDENTURE
Dated as of ________ ___, 1997
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CROSS REFERENCE SHEET*
Provisions of Sections 310 through 318(a) inclusive of the Trust Indenture
Act of 1939, as amended, and the Indenture dated as of ______ ___, 1997 between
WellPoint Health Networks Inc. and [ ], as Trustee.
SECTION OF ACT SECTION OF INDENTURE
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310(a)(1) 6.10
310(a)(2) 6.10
310(a)(3) N/A
310(a)(4) N/A
310(a)(5) 6.10
310(b) 6.10
310(c) N/A
311(a) 6.11
311(b) 6.11
311(b)(2) 6.11
311(c) N/A
312(a) 4.1
312(b) 4.2(b)
312(c) 4.2(c)
313(a) 6.6
313(b) 6.6
313(c) 6.6
313(d) 6.6
314(a) 4.3
314(b) N/A
314(c)(1) 2.4 and 11.5
314(c)(2) 2.4 and 11.5
314(c)(3) N/A
314(d) N/A
314(e) 11.5
315(a) 6.1(b)
315(b) 6.5
315(c) 6.1(a)
315(d)(1) 6.1(b)(1) and 6.1(b)(2)
315(d)(2) 6.1(c)(2)
315(d)(3) 6.1(c)(3)
315(e) 5.10
316(a)(1)(A) 5.8
316(a)(1)(B) 5.9
316(a)(2) N/A
316(b) 5.6
316(c) 2.7
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* This cross reference sheet shall not, for any purpose, be deemed to be a
part of the Indenture.
i.
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SECTION OF ACT SECTION OF INDENTURE
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317(a)(1) 5.2
317(a)(2) 5.2
317(b) 3.2 and 3.3
318(a) 1.7
Attention should also be directed to Section 318(c) of the Trust Indenture
Act of 1939, as amended, which provides that the provisions of Sections 310
through 317 of such Act are a part of and govern every qualified indenture,
whether or not physically contained therein.
ii.
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................ 1
SECTION 1.1 Certain Terms Defined...................................... 1
ARTICLE II SECURITIES...................................................... 5
SECTION 2.1 Forms Generally............................................ 5
SECTION 2.2 Form of Trustee's Certificate of Authentication............ 5
SECTION 2.3 Amount Unlimited; Issuable in Series....................... 6
SECTION 2.4 Authentication and Delivery of Securities.................. 7
SECTION 2.5 Execution of Securities.................................... 8
SECTION 2.6 Certificate of Authentication.............................. 8
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.. 8
SECTION 2.8 Registration, Transfer and Exchange........................ 10
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.. 10
SECTION 2.10 Cancellation of Securities................................. 11
SECTION 2.11 Temporary Securities....................................... 11
SECTION 2.12 Securities in Global Form.................................. 11
ARTICLE III COVENANTS OF THE COMPANY........................................ 12
SECTION 3.1 Payment of Principal and Interest.......................... 12
SECTION 3.2 Offices for Payment, etc................................... 12
SECTION 3.3 Paying Agents.............................................. 12
SECTION 3.4 Written Statement to Trustee............................... 13
SECTION 3.5 Calculation of Original Issue Discount..................... 13
ARTICLE IV SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE......................................................... 13
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders............................... 13
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists...... 14
SECTION 4.3 Reports by the Company..................................... 15
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT......................................................... 15
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default................................ 15
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt............................................. 17
SECTION 5.3 Application of Proceeds.................................... 18
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings........ 19
SECTION 5.5 Limitations on Suits by Securityholders.................... 19
SECTION 5.6 Unconditional Right of Securityholders to
Institute Certain Suits.................................... 19
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default...................................... 20
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SECTION 5.8 Control by Securityholders............................... 20
SECTION 5.9 Waiver of Past Defaults.................................. 20
SECTION 5.10 Right of Court to Require Filing of Undertaking
to Pay Costs............................................. 20
SECTION 5.11 Suits for Enforcement.................................... 21
ARTICLE VI CONCERNING THE TRUSTEE......................................... 21
SECTION 6.1 Duties of Trustee........................................ 21
SECTION 6.2 Rights of Trustee........................................ 22
SECTION 6.3 Individual Rights of Trustee............................. 23
SECTION 6.4 Trustee's Disclaimer..................................... 23
SECTION 6.5 Notice of Defaults....................................... 23
SECTION 6.6 Reports by Trustee to Holders............................ 23
SECTION 6.7 Compensation and Indemnity............................... 24
SECTION 6.8 Replacement of Trustee................................... 24
SECTION 6.9 Successor Trustee by Merger.............................. 25
SECTION 6.10 Eligibility; Disqualification............................ 25
SECTION 6.11 Referential Collection of Claims Against Company......... 25
ARTICLE VII CONCERNING THE SECURITYHOLDERS................................. 25
SECTION 7.1 Evidence of Action Taken by Securityholders.............. 25
SECTION 7.2 Proof of Execution of Instruments........................ 25
SECTION 7.3 Holders to Be Treated as Owners.......................... 26
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding....... 26
SECTION 7.5 Right of Revocation of Action Taken...................... 26
ARTICLE VIII SUPPLEMENTAL INDENTURES........................................ 26
SECTION 8.1 Supplemental Indentures Without Consent
of Securityholders....................................... 26
SECTION 8.2 Supplemental Indentures with Consent
of Securityholders....................................... 27
SECTION 8.3 Effect of Supplemental Indenture......................... 28
SECTION 8.4 Documents to Be Given to Trustee......................... 28
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures.................................. 28
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE...................... 28
SECTION 9.1 Company May Consolidate, etc............................. 28
SECTION 9.2 Successor Corporation Substituted........................ 29
SECTION 9.3 Opinion of Counsel to Trustee............................ 29
ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE: UNCLAIMED MONEYS...... 29
SECTION 10.1 Satisfaction and Discharge of Indenture.................. 29
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities.................................... 31
SECTION 10.3 Repayment of Moneys Held by Paying Agent................. 31
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee
and Paying Agent......................................... 32
SECTION 10.5 Reinstatement of Company's Obligations................... 32
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ARTICLE XI MISCELLANEOUS PROVISIONS...................................... 32
SECTION 11.1 Incorporators, Stockholders, Officers and Directors
of Company Exempt from Individual Liability.............. 32
SECTION 11.2 Provisions of Indenture for the Sole Benefit
of Parties and Securityholders........................... 32
SECTION 11.3 Successors and Assigns of Company Bound
by Indenture............................................. 33
SECTION 11.4 Notices and Demands on Company, Trustee
and Securityholders...................................... 33
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein....................... 33
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays.......... 34
SECTION 11.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939.............................. 34
SECTION 11.8 Delaware Law to Govern................................... 34
SECTION 11.9 Counterparts............................................. 34
SECTION 11.10 Effect of Headings; Gender............................... 34
ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS.................... 34
SECTION 12.1 Applicability of Article................................. 34
SECTION 12.2 Notice of Redemption; Partial Redemptions................ 34
SECTION 12.3 Payment of Securities Called for Redemption.............. 36
SECTION 12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption............................. 36
SECTION 12.5 Mandatory and Optional Sinking Funds..................... 36
SECTION 12.6 Repayment at the Option of the Holders................... 38
SECTION 12.7 Conversion Arrangement on Call for Redemption............ 38
ARTICLE XIII CONVERSION OF SECURITIES...................................... 39
SECTION 13.1 Applicability of Article................................. 39
SECTION 13.2 Right of Holders to Convert Securities
into Common Shares....................................... 39
SECTION 13.3 Issuance of Common Shares on Conversions................. 39
SECTION 13.4 No Payment or Adjustment for Interest or Dividends....... 40
SECTION 13.5 Adjustment of Conversion Price........................... 40
SECTION 13.6 No Fractional Shares to Be Issued........................ 43
SECTION 13.7 Preservation of Conversion Rights upon
Consolidation, Merger, Sale or Conveyance................ 43
SECTION 13.8 Notice to Holders of the Securities of a Series
Prior to Taking Certain Types of Action.................. 44
SECTION 13.9 Covenant to Reserve Shares for Issuance
on Conversion of Securities.............................. 44
SECTION 13.10 Compliance with Governmental Requirements................ 44
SECTION 13.11 Payment of Taxes upon Certificates for
Shares Issued upon Conversion............................ 45
SECTION 13.12 Trustee's Duties with Respect to Conversion Provisions... 45
SECTION 13.13 Conversion of Securities into Preferred Stock............ 45
ARTICLE XIV SUBORDINATION OF SECURITIES................................... 45
SECTION 14.1 Securities Subordinated to Senior Indebtedness........... 45
SECTION 14.2 Subrogation.............................................. 46
SECTION 14.3 Obligation of the Company Unconditional.................. 47
SECTION 14.4 Payments on Securities Permitted......................... 47
SECTION 14.5 Effectuation of Subordination by Trustee................. 47
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SECTION 14.6 Knowledge of Trustee..................................... 47
SECTION 14.7 Trustee May Hold Senior Indebtedness..................... 48
SECTION 14.8 Rights of Holders of Senior Indebtedness Not Impaired.... 48
vi.
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THIS INDENTURE, dated as of _______ ___, 1997 between WellPoint Health
Networks Inc., a Delaware corporation (the "Company"), and [ ] as trustee (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issue from time to time of its
unsecured subordinated debentures, notes or other evidences of indebtedness (the
"Securities") to be issued in one or more Series; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually agreed for the equal and ratable benefit of the
Holders from time to time of the Securities or of Series thereof as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as amended, or
the definitions of which in the Securities Act of 1933, as amended, are referred
to in the Trust Indenture Act of 1939, as amended, including terms defined
therein by reference to the Securities Act of 1933, as amended (except as herein
otherwise expressly provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in said Trust Indenture Act and
in said Securities Act as in force at the date of this Indenture. All accounting
terms used herein and not expressly defined shall have the meanings assigned to
such terms in accordance with generally accepted accounting principles, and the
term "generally accepted accounting principles" means such accounting principles
as are generally accepted at the time of any computation. The words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole, as supplemented and amended from time to time, and not to
any particular Article, Section or other subdivision. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Board of Directors" means either the Board of Directors of the Company or
any duly authorized committee of that Board or any duly authorized committee
created by that Board.
"Business Day" means, except as may otherwise be provided in the form of
Securities of any particular Series, with respect to any Place of Payment or
place of publication, any day, other than a Saturday or Sunday, or a day on
which banking institutions are authorized or required by law or regulation to
close in that Place of Payment, place of publication or where the principal
corporate trust office of the Trustee is located.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or if at any time after the execution and delivery 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 on such date.
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"Common Shares" means the shares of common stock, par value $.01 per share,
of the Company as they exist on the date of this Indenture, or any other shares
of capital stock of the Company into which such shares shall be reclassified or
changed.
"Company" means WellPoint Health Networks Inc., a Delaware corporation,
until a successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean such successor
corporation.
"Company Notice" means the confirmation of the Company, signed by an
officer, received by the Trustee, of the terms of the issuance of any
Securities.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is located
at [ ].
"defaulted interest" has the meaning specified in Section 2.7.
"Depository" shall mean, with respect to Securities of any Series for which
the Company shall determine that such Securities will be issued as a Depository
Security, The Depository Trust Company, New York, New York, or another clearing
agency or any successor registered under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, which, in each case, shall
be designated by the Company pursuant to Sections 2.3 and 2.12.
"Depository Security" shall mean, with respect to any Series of Securities,
a Security executed by the Company and authenticated and delivered by the
Trustee to the Depository or pursuant to the Depository's instruction, all in
accordance with this Indenture and pursuant to a resolution of the Board of
Directors as contemplated by Section 2.3, which (i) shall be registered as to
principal and interest in the name of the Depository or its nominee and (ii)
shall represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such Series.
"defeasance" has the meaning specified in Section 10.1(B).
"Dollar" means the coin or currency of the United States of America which
as of the time of payment is legal tender for the payment of public and private
debts.
"Event of Default" has the meaning specified in Section 5.1.
"Government Obligations" means, unless otherwise specified pursuant to
Section 2.3, securities which are (i) direct obligations of the United States
government or (ii) obligations of a Person controlled or supervised by, or
acting as an agency or instrumentality of, the United States government, the
payment of which obligations is unconditionally guaranteed by such government,
and which, in either case, are full faith and credit obligations of such
government, and which are not callable or redeemable at the option of the issuer
thereof.
"Holder," "Holder of Securities," "Registered Holder," "Securityholder" or
other similar terms mean the Person in whose name at the time a particular
Security is registered in the Security register.
"Indenture" means this instrument as originally executed or as it may from
time to time be amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular Series
of Securities established as contemplated by Section 2.3.
2.
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Officers' Certificate" means a certificate signed on behalf of the Company
by the chairman of the Board of Directors or the vice chairman or the president
or any vice president and by the treasurer, the controller, any assistant
treasurer, the secretary or any assistant secretary of the Company and delivered
to the Trustee. Each such certificate shall include the statements provided for
in Section 11.5.
"Opinion of Counsel" means a written opinion of legal counsel who may be an
employee of or counsel to the Company and who shall be reasonably acceptable to
the Trustee. Each Opinion of Counsel shall include the statements provided for
in Section 11.5, if and to the extent required hereby.
"original issue date" of any Security (or portion thereof) means the date
set forth as such on such Security.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"Outstanding," when used with reference to Securities, shall, subject to
the provisions of Section 7.4, mean, as of any particular time, all Securities
authenticated and delivered under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount and in the required currency shall have
been deposited in trust with the Trustee or with any Paying Agent (other than
the Company) or shall have been set aside, segregated and held in trust by the
Company for the holders of such Securities (if the Company shall act as its own
Paying Agent), provided that if such securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as herein provided, or provision satisfactory to the Trustee shall
have been made for giving such notice;
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant to the
terms of Section 2.9 (except with respect to any such Security as to which proof
satisfactory to the Trustee and the Company is presented that such Security is
held by a person in whose hands such Security is a legal, valid and binding
obligation of the Company);
(d) Securities converted into Common Shares or Preferred Shares in
accordance with or as contemplated by this Indenture; and
(e) Securities with respect to which the Company has effected
defeasance as provided in Article Ten.
"Paying Agent" means any Person (which may include the Company) authorized
by the Company to pay the principal of or interest, if any, on any Security on
behalf of the Company.
"Person" or "person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any Series,
means the place or places where the principal of and interest, if any, on the
Securities of that Series are payable as specified pursuant to Section 3.2.
3.
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"Preferred Shares" means any shares of capital stock issued by the Company
that are entitled to a preference or priority over the Common Shares upon any
distribution of the Company's assets, whether by dividend or upon liquidation.
"principal" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any."
"Responsible Officer" when used with respect to the Trustee shall mean any
officer within the corporate trust department (or any successor department) of
the Trustee including any vice president, assistant vice president, assistant
secretary, senior trust officer, trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred at the Corporate Trust Office
because of his or her knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any securities authenticated and
delivered under this Indenture.
"Senior Indebtedness" means (i) the principal of and premium, if any, and
unpaid interest on indebtedness for money borrowed, (ii) purchase money and
similar obligations, (iii) obligations under capital leases or leases of
property or assets made as part of any sale and leaseback transaction, (iv)
guarantees, assumptions or purchase commitments relating to, or other
transactions as a result of which the Company is responsible for the payment of,
such indebtedness of others, (v) renewals, extensions and refunding of any such
indebtedness, (vi) interest or obligations in respect of any such indebtedness
accruing after the commencement of any insolvency or bankruptcy proceedings; and
(vii) obligations associated with derivative products such as interest rate and
currency exchange contracts, foreign exchange contracts, commodity contracts,
and similar arrangements, unless, in each case, the instrument by which the
Company incurred, assumed or guaranteed the indebtedness or obligations
described in clauses (i) through (vii) hereof expressly provides that such
indebtedness or obligation is not senior in right of payment to the Securities.
"Series" or "Series of Securities" means all Securities of a similar tenor
authorized by a particular resolution of the Board of Directors.
"Subsidiary" means (i) a corporation, a majority of whose capital stock
with voting power, under ordinary circumstances, to elect directors is, at the
date of determination, directly or indirectly owned by the Company, by one or
more Subsidiaries of the Company or by the Company and one or more Subsidiaries
of the Company, (ii) a partnership, joint venture or similar entity in which the
Company, a Subsidiary of the Company or the Company and one or more Subsidiaries
of the Company, directly or indirectly, holds a majority interest in the equity
capital or profits or other similar interests of such entity, or (iii) any other
person (other than a corporation) in which the Company, a Subsidiary of the
Company or the Company and one or more Subsidiaries of the Company, directly or
indirectly, at the date of determination, has (x) at least a majority ownership
interest or (y) the power to elect or direct the election of a majority of the
directors or other governing body of such person.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof until a successor Trustee shall have become such pursuant to the
provision hereof, and thereafter "Trustee" shall mean or include each Person who
is then a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any Series shall
mean the Trustee with respect to Securities of that Series.
"Trust Indenture Act of 1939" or "TIA" (except as otherwise provided in,
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as amended as in
force at the date as of which this Indenture was originally executed.
4.
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"United States of America" means the United States of America (including
the states and the District of Columbia), its territories, possessions, the
Commonwealth of Puerto Rico and other areas subject to its jurisdiction.
"vice president" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president."
ARTICLE II
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each Series shall be
substantially in such form (including temporary or definitive globalform) as
shall be established by or pursuant to a resolution of the Board of Directors 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 (the provisions of which shall be
appropriate to reflect the terms of the Series of Securities represented
thereby) and may have imprinted or otherwise reproduced thereon such legend or
legends, not inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities as
evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
(determined by the officers executing such Securities as evidenced by their
execution of such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
This is one of the Securities of the Series designated herein and referred
to in the within-mentioned Indenture.
[ ,] as Trustee
By:________________________________
Authorized Signatory
or
[ ,] as Trustee
By:________________________________,
as Authentication Agent
By:________________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
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The Securities may be issued in one or more Series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any Series,
(1) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from all other Securities issued by the
Company);
(2) any limit upon the aggregate principal amount of the Securities of
the Series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the Series pursuant to
Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than 100% of their principal amount, the percentage of
their principal amount at which the Securities of the Series will be offered for
sale to the public;
(4) the date or dates on which the principal of the Securities of the
Series is payable or the method of determination thereof;
(5) the rate or rates (which may be fixed or variable), or the method
or methods of determination thereof, at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest shall accrue,
the interest payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is payable;
(6) the place or places where the principal and interest, if any, on
Securities of the Series shall be payable (if other than as provided in Section
3.2);
(7) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the Series may be
redeemed, in whole or in part, at the option of the Company;
(8) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 5.1 or
provable in bankruptcy pursuant to Section 5.2;
(9) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the Series whether pursuant to any sinking fund or analogous
provisions or pursuant to other provisions set forth therein or at the option of
a Holder thereof and the price or prices at which and the period or periods
within which and the terms and conditions upon which Securities of the Series
shall be redeemed, purchased or repaid, in whole or in part;
(10) if other than denominations of $1,000, and any integral multiple
thereof, the denominations in which Securities of the Series shall be issuable;
(11) the form of the Securities, including such legends as required by
law or as the Company deems necessary or appropriate and the form of any
temporary global security which may be issued;
(12) whether, and under what circumstances, the Securities of any
Series shall be convertible into Securities of any other Series and, if so, the
terms and conditions upon which such conversion will be effected including the
initial conversion price or rate, the conversion period and other provisions in
addition to or in lieu of those described herein;
6.
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(13) if other than the Trustee, any trustees, authenticating or Paying
Agents, transfer agents or registrars or any other agents with respect to the
Securities of such Series;
(14) if the Securities of such Series do not bear interest, the
applicable dates for purposes of Section 4.1 hereof;
(15) whether the Securities of such Series are to be issuable in whole
or in part in the form of one or more Depository Securities, and, in such case,
the Depository for such Securities;
(16) the application, if any, of Section 10.1(B)(ii) to the Securities
of the Series;
(17) the obligation, if any, of the Company to permit the conversion
of the Securities of such Series into the Company's Common Shares or Preferred
Shares (and the class thereof), as the case may be, and the terms and conditions
upon which such conversion shall be effected (including, without limitation, the
initial conversion price or rate, the conversion period, any adjustment of the
applicable conversion price or rate and any requirements relative to reservation
of shares for purposes of conversion); and
(18) any other terms or conditions upon which the Securities of the
Series are to be issued (which terms shall not be inconsistent with the
provisions of this Indenture).
All Securities of any one Series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors or in any such 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 for issuances of
additional Securities of such Series.
SECTION 2.4 Authentication and Delivery of Securities. At any time and from
time to time after the execution and delivery of this Indenture, the Company may
deliver Securities of any Series executed by the Company to the Trustee for
authentication, and the Trustee shall thereupon authenticate and make available
for delivery such Securities to or upon the written order of the Company, signed
by both (a) the chairman of its Board of Directors, or its president or any vice
president and (b) its treasurer or any assistant treasurer, secretary or any
assistant secretary without any further action by the Company. In authenticating
such Securities and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive and (subject to Section 6.1) shall be fully protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of Directors
relating to such Series, in each case certified by the secretary or an
assistant secretary of the Company;
(2) a supplemental indenture, if any;
(3) an Officers' Certificate setting forth the form and terms of the
Securities of such Series as required pursuant to Sections 2.1 and 2.3,
respectively, and prepared in accordance with Section 11.5; and
(4) an Opinion of Counsel, prepared in accordance with Section 11.5,
which shall state
(a) that the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board of Directors
or by a supplemental indenture as permitted by Sections 2.1 and 2.3 in
conformity with the provisions of this Indenture and in conformity
with such resolution; and
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(b) that such Securities have been duly authorized, and, 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 binding obligations of the
Company enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other laws relating to or affecting the enforcement
of creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a
proceeding in equity or at law.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under this
Indenture in a manner not reasonably acceptable to the Trustee.
SECTION 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Company by both (a) the chairman of its Board of Directors or its
president or any vice president and (b) its treasurer or any assistant treasurer
or its secretary or any assistant secretary, under its corporate seal which may,
but need not, be attested. Such signatures may be the manual or facsimile
signatures of such officers. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Company; and any Security may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form
hereinbefore recited and executed by the Trustee by the manual signature of one
of its authorized signatories shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Company shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10 together with a written statement (which need not
comply with Section 11.5 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 the Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of the Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest. The
Securities shall be issuable in denominations as shall be specified as
contemplated by Section 2.3. In the absence of any such specification with
respect to the Securities of any Series, Securities shall be issuable in
denominations of $1,000 and any integral multiple thereof, and interest shall be
computed on the basis of a 360-day year of twelve 30-day months. The Securities
shall be numbered, lettered, or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Company executing the same may
determine with the approval of the Trustee as evidenced by the execution and
authentication thereof.
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Each Security shall be dated the date of its authentication.
Unless otherwise provided as contemplated by Section 2.3,interest on any
Security which is payable, and is punctually paid or duly provided for, on any
interest payment date shall be paid to the person in whose name that Security
(or one or more predecessor securities) is registered at the close of business
on the regular record date for the payment of such interest.
The term "record date" as used with respect to any interest payment date
(except for a date for payment of defaulted interest) shall mean the date
specified as such in the terms of the Securities of any particular Series, or,
if no such date is so specified, the close of business on the fifteenth day
preceding such interest payment date, whether or not such record date is a
Business Day.
Any interest on any Security of any Series which is payable,but is not
punctually paid or duly provided for, on any interest payment date(called
"defaulted interest" for purposes of this Section) shall forthwith cease to be
payable to the Registered Holder on the relevant record date by virtue of his
having been such Holder; and such defaulted interest may be paid by the Company,
at its election in each case, as provided in clause (1) or clause (2)below:
(1) The Company may elect to make payment of any defaulted interest to
the persons in whose names any such Securities (or their respective
predecessor Securities) are registered at the close of business on a
special record date for the payment of such defaulted interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each
Security of such Series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
defaulted interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled to
such defaulted interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such defaulted interest
in respect of Securities of such Series which shall be not more than 15 nor
less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of, the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such defaulted interest and
the special record date thereof to be mailed, first class postage prepaid,
to each Registered Holder at his address as it appears in the Security
register, not less than 10 days prior to such special record date. Notice
of the proposed payment of such defaulted interest and the special record
date therefor having been mailed as aforesaid, such defaulted interest in
respect of Securities of such Series shall be paid to the person in whose
names such Securities (or their respective predecessor Securities) are
registered on such special record date and such defaulted interest shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any defaulted interest on the
Securities of any Series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of that
Series may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon 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.
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SECTION 2.8 Registration, Transfer and Exchange. The Company will cause to
be kept at each office or agency to be maintained for the purpose as provided in
Section 3.2 a register or registers in which, subject to such reasonable
regulations as it may prescribe, the Company will provide for the registration
and the registration of the transfer of, the Securities. The Trustee is hereby
appointed Security registrar for purposes of registering, and registering
transfers of, the Securities.
Upon surrender for registration of transfer of any Security of any Series
at any such office or agency to be maintained for the purpose as provided in
Section 3.2, the Company shall execute and the Trustee shall authenticate and
make available for delivery in the name of the transferee or transferees a new
Security or Securities of the same Series and of a like tenor and containing the
same terms (other than the principal amount thereof, if more than one Security
is executed, authenticated and delivered with respect to any security so
presented, in which case the aggregate principal amount of the executed,
authenticated and delivered Securities shall equal the principal amount of the
Security presented in respect thereof) and conditions.
All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the 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
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 transfer or exchange of Securities, other than exchanges pursuant to
Sections 2.11, 8.5 or 12.3 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Security during a 15-day period prior to the day of mailing of the
relevant notice of redemption or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except, in the case
of any Security to be redeemed in part, the portion thereof not redeemed.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security shall become mutilated or defaced or
be destroyed, lost or stolen, the Company shall execute, and upon the written
request of any officer of the Company, the Trustee shall authenticate and make
available for delivery a new Security of the same Series and of like tenor and
principal amount and with the same terms and conditions, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Company and to the Trustee and to any agent of the Company or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith. In case any Security which has
matured or is about to mature or has been called for redemption in full shall
become mutilated or defaced or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated or defaced
Security); provided, however, that unless otherwise provided pursuant to Section
2.3, the applicant for such payment shall furnish to the Company
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and to the Trustee and any agent of the Company or the Trustee such security or
indemnity as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee and any agent of the Company or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.
Every substitute Security of any Series issued pursuant to the provisions
of this Section by virtue of the fact that any Security is destroyed,lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at anytime
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such Series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities. All Securities surrendered for
payment, redemption, registration of transfer or exchange, or for credit against
any payment in respect of a sinking or analogous fund, shall, if surrendered to
the Company or any agent of the Company or the Trustee, be delivered to the
Trustee for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities shall be issued in lieu thereof, except as expressly
permitted by any of the provisions of this Indenture. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold and all
Securities so delivered shall be promptly cancelled by the Trustee. The Trustee
shall return cancelled Securities held by it to the Company. If the Company
shall acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any Series, the Company may execute and the Trustee shall
authenticate and make available for delivery temporary Securities for such
Series (printed, lithographed, typewritten or otherwise reproduced, in each case
in form reasonably acceptable to the Trustee). Temporary Securities of any
Series may be issued of any authorized denomination, and substantially in the
form of the definitive Securities of such Series but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company with the reasonable concurrence of the Trustee.
Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be executed by
the Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Company shall execute and shall
furnish definitive securities of such Series and thereupon temporary Securities
of such Series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Company for that purpose pursuant to
Section 3.2, and the Trustee shall authenticate and make available for delivery
in exchange for such temporary Securities of such Series a like aggregate
principal amount of definitive Securities of the same Series of authorized
denominations. Until so exchanged, the temporary Securities of any Series shall
be entitled to the same benefits under this Indenture as definitive Securities
of such Series.
SECTION 2.12 Securities in Global Form. If Securities of a Series are
issuable in global form, as specified as contemplated by Section 2.3, then,
notwithstanding clause (10) of Section 2.3 and the provisions of Section 2.7,
such Security shall represent such of the Outstanding Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby may be made by the
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Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the company order to be delivered to the
Trustee pursuant to Section 2.4. Subject to the provisions of Section 2.4, the
Trustee shall deliver and redeliver any Security in definitive global form in
the manner and upon written instructions given by the Person or Persons
specified therein or in the applicable company order. If a company order
pursuant to Section 2.4 has been, or simultaneously is, delivered, 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 11.5 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 2.6 shall apply to any
Security represented by a 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 11.5 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 sentence
of Section 2.6.
Notwithstanding the provisions of Sections 2.3 and 2.7, unless otherwise
specified as contemplated by Section 2.3, payment of principal of and any
interest on any Security in definitive global form shall be made to the Person
or Persons specified therein.
Except as provided in the preceding paragraph, the Company, the Trustee and
any agent of the Company and the Trustee shall treat a Person as the Holder of
such principal amount of outstanding Securities represented by a definitive
global Security as shall be specified in a written statement of the Holder of
such definitive global Security.
ARTICLE III
COVENANTS OF THE COMPANY
SECTION 3.1 Payment of Principal and Interest. The Company covenants and
agrees for the benefit of each particular Series of Securities that it will duly
and punctually pay or cause to be paid the principal of, and interest on, each
of the Securities of such Series in accordance with the terms of the Securities
of such Series and this Indenture.
SECTION 3.2 Offices for Payment, etc. So long as any of the Securities
remain outstanding, the Company will maintain the following for each Series: an
office or agency (a) where the Securities may be presented for payment or
conversion, (b) where the Securities may be presented for registration of
transfer and for exchange as in this Indenture provided, and (c) where notices
and demands to or upon the Company in respect of the Securities or of this
Indenture may be served. The Company will give to the Trustee written notice of
the location of any such office or agency and of any change of location thereof.
In case the Company shall fail to so designate or maintain any such office or
agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office. Unless otherwise specified pursuant to
Section 2.3, the Trustee is hereby appointed Paying Agent.
SECTION 3.3 Paying Agents. Whenever the Company shall appoint a Paying
Agent other than the Trustee with respect to the Securities of any Series, it
will cause such Paying Agent to execute and deliver to the Trustee an instrument
in which such Agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such Agent for the
payment of the principal of or interest on the Securities of such Series
(whether such sums have been paid to it by the Company
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or by any other obligor on the Securities of such Series) in trust for the
benefit of the Holders of the Securities of such Series or of the Trustee, and
upon the occurrence of an Event of Default and upon the written request of the
Trustee, pay over all such sums received by it to the Trustee, and
(b) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities of such series) to make any payment
of the principal of or interest on the Securities of such Series when the same
shall be due and payable.
The Company will, on or prior to each due date of the principal of or
interest on the Securities of such Series, deposit in a timely manner with the
Paying Agent a sum sufficient to pay such principal or interest so becoming due,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of any failure to take such action.
If the Company shall act as its own Paying Agent with respect to the
Securities of any Series, it will, on or before each due date of the principal
of or interest on the Securities of such Series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such Series a sum
sufficient to pay such principal or interest so becoming due. The Company will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Company may
at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such Series by the Company or any Paying Agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.3 and 10.4.
SECTION 3.4 Written Statement to Trustee. The Company shall deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company ending
after the date hereof, a brief certificate (which need not comply with Section
11.5) from the principal executive, financial or accounting officer of the
Company as to his or her knowledge, after due inquiry, of the Company's
compliance with all conditions and covenants under the Indenture (such
compliance to be determined without regard to any period of grace or requirement
of notice provided under the Indenture).
SECTION 3.5 Calculation of Original Issue Discount. The Company shall file
with the Trustee promptly at the end of each calendar year a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on Outstanding Securities as of the end of such year.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Securities of each Series:
(a) semiannually and not more than 15 days after each record date for
the payment of interest on such Securities, as hereinabove specified, as of
such record date, and
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(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Company of any such request,
such list to be as of a date not more than 15 days prior to the time such
information is furnished, provided that if and so long as the Trustee shall
be the Security registrar for such Series, such list shall not be required
to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each Series of Securities contained in the most recent list furnished to it as
provided in Section 4.1 or maintained by the Trustee in its capacity as Security
registrar for such Series, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) In case three or more Holders of Securities of any Series
(hereinafter referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular Series (in which
case the applicants must all hold Securities of such Series) or with Holders of
all Securities with respect to their rights under this Indenture or under such
Securities and such application is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at its
election, either
(i) afford to such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of subsection
(a) of this Section 4.2, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such Series or all Securities, as the case may be,
whose names and addresses appear in the information preserved at the time
by the Trustee, in accordance with the provisions of subsection (a) of this
Section, and as to the approximate cost of mailing to such Securityholders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder of such Series or all Securities, as the case may
be, whose name and address appear in the information preserved at the time by
the Trustee in accordance with the provisions of subsection (a) of this Section,
a copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission together with
a copy of the material to be mailed, a written statement to the effect that, in
the opinion of the Trustee, such mailing would be contrary to the best interests
of the Holders of Securities of such Series or all Securities, as the case may
be, or could be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of such order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Securityholders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of the Company or
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the Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in
accordance with the provisions of subsection (b) of this Section, regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under such subsection (b).
SECTION 4.3 Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents, and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended, or if the Company is not required to file information,
documents, or reports pursuant to either of such Sections, then to file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents, and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, or in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents, and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations; and
(c) to transmit by mail to the Holders of Securities in the manner and
to the extent required by Sections 6.6 and 11.4, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents, and
reports required to be filed by the Company pursuant to subsections (a) and (b)
of this Section as may be required to be transmitted to such Holders by rules
and regulations prescribed from time to time by the Commission.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default. "Event of Default" with respect to Securities of any Series wherever
used herein, means any one of the following events which shall have occurred and
be continuing (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) unless it is either inapplicable to
a particular Series or it is specifically deleted or modified in or pursuant to
the supplemental indenture or resolution of the Board of Directors establishing
such Series of Securities or in the form of Security for such Series:
(a) default in the payment of any installment of interest upon any of
the Securities of such Series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of any
of the Securities of such Series as and when the same shall become due and
payable, either at maturity, upon any redemption, by declaration or
otherwise; or
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(c) default in the performance, or breach of any covenant or warranty
of the Company contained in the Securities of such Series or in this
Indenture (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for the benefit
of a Series of Securities other than that Series), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that Series, a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is "Notice of Default" hereunder; or
(d) default under any bond, debenture, note or other evidence of
indebtedness of the Company or any other Subsidiary, or under any mortgage,
indenture or instrument under which there may be issued or by which there
may be secured or evidenced any indebtedness of the Company or any
Subsidiary, whether such indebtedness now exists or is hereafter created,
which default involves the failure to pay principal on indebtedness at the
final maturity thereof after the expiration of any applicable grace period
with respect thereto, or which has resulted in indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise become due and payable in an aggregate amount in excess of
$30,000,000;
(e) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(f) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors; or
(g) any other Event of Default provided with respect to Securities of
such Series in the supplemental indenture or resolution of the Board of
Directors establishing such Series.
If an Event of Default occurs and is continuing with respect to the Securities
of any Series, then and in each and every such case, unless the principal of all
Securities of such Series shall have already become due and payable, either the
Trustee for such Series or the Holders of not less than 25% in aggregate
principal amount at maturity of the Securities of such Series then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
such Holders), may declare the principal of all the Securities of such Series to
be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable. This provision, however, is
subject to the condition that if at any time after the principal of the
Securities of such Series shall have been so declared due and payable, and
before any judgment or decree for the
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payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all the
Securities of such Series and the principal of any and all Securities of such
Series which shall have become due otherwise than by such acceleration (with
interest upon such principal and, to the extent that payment of such interest is
enforceable under applicable law, upon overdue installments of interest, at the
rate borne by the Securities of such Series to the date of such payment or
deposit) and in Dollars such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents,attorneys and counsel and all other
expenses and liabilities incurred, and all advances made, by the Trustee, its
agents, attorneys and counsel and any and all defaults under this Indenture,
other than the nonpayment of the principal of Securities of such Series which
shall have become due by such acceleration,shall have been remedied, then and in
every such case the Holders of a majority in aggregate principal amount at
maturity of the Securities of such Series then Outstanding, by written notice to
the Company and to the Trustee for the Securities of such Series, may waive all
defaults and rescind and annul such declaration and its consequences; but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.
The Company covenants that (a) in case default shall be made in the payment of
any installment of interest on any of the Securities of any Series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
Series when the same shall have become due and payable, whether upon maturity of
the Securities of such Series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee for the Securities of such Series,
the Company will pay to the Trustee for the Securities of such Series for the
benefit of the Holders of the Securities of such Series the whole amount that
then shall have become due and payable on all Securities of such Series for
principal of or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest specified in the Securities of
such Series); and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to, and all expenses and liabilities incurred and all advances made
by, the Trustee and each predecessor Trustee and their respective agents,
attorneys and counsel.
Until such demand is made by the Trustee, the Company may pay the principal
of and interest on the Securities of any Series to the persons entitled thereto,
whether or not the principal of and interest on the Securities of such Series
are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee for the Securities of such series, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon such Securities and collect in the manner provided
by law out of the property of the Company or other obligor upon such Securities,
wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or any
other obligor upon the Securities under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or its property or such other obligor, or in
case of any other comparable judicial proceedings relative to the Company or
other obligor under the Securities of any Series, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of any Securities shall then be due and payable as therein
expressed (or by declaration or otherwise and irrespective of whether the
Trustee shall have
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made any demand pursuant to the provisions of this Section, shall be entitled
and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Securities of any
Series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim
for reasonable compensation to, and all expenses and liabilities incurred
and all advances made by, the Trustee and each predecessor Trustee, and
their respective agents, attorneys and counsel) and of the Securityholders
allowed in any judicial proceedings relative to the Company or other
obligor upon all Securities of any Series, or to the creditors or property
of the Company or such other obligor, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Holders to make
payments to the Trustee for the Securities of such Series, and, in the
event that such Trustee shall consent to the making of payments directly to
the Securityholders, to pay to such Trustee such amounts as shall be
sufficient to cover reasonable compensation to, and all expenses and
liabilities incurred and all advances made by, such Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel and
all other amounts due to such Trustee or any predecessor Trustee pursuant
to Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of any Series or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee for the Securities of such
Series without the possession of any of the Securities of such Series or the
production thereof at any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities in respect of which such action
was taken.
In any proceedings brought by the Trustee for the Securities of such Series
(and also any proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party), the Trustee shall be held to
represent all the Holders of the Securities in respect of which such action was
taken, and it shall not be necessary to make any Holders of such Securities
parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by the Trustee
for the Securities of such Series pursuant to this Article in respect of the
Securities of any series shall be applied in the following order at the date or
dates fixed by such Trustee and, in case of the distribution of such moneys on
account of principal or interest, upon presentation of the several Securities in
respect of which moneys have been collected and stamping (or otherwise noting)
thereon the payment, or issuing Securities of such Series in reduced principal
amounts in exchange for the presented Securities of like Series if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such Series
in respect of which moneys have been collected, including reasonable
compensation to, and all expenses and liabilities incurred and all advances
made by, the Trustee and each predecessor Trustee and their respective
agents
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and attorneys and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 6.7;
SECOND: To the payment of the amounts then due and unpaid to the
holders of Senior Indebtedness, to the extent required by Article Fourteen;
THIRD: To the payment of the amounts then due and unpaid for principal
of and interest on the Securities of such Series in respect of which moneys
have been collected, such payments to be made ratably to the persons
entitled thereto, without discrimination or preference, according to the
amounts then due and payable on such Securities for principal and interest;
and
FOURTH: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings. In case
the Trustee for the Securities of any Series shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case, subject to the determination in any such
proceeding, the Company and the Trustee shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of
the Company, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
SECTION 5.5 Limitations on Suits by Securityholders. No Holder of any
Security of any Series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of an Event of Default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of not less than 25% in aggregate principal amount of the Securities of
such Series then Outstanding shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee indemnity reasonable to it, as it may require,
against the costs, expenses and liabilities to be incurred therein or thereby
and the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee during such 60-day period by Holders of a majority in principal amount
of the Securities of such Series then Outstanding; it being understood and
intended, and being expressly covenanted by the taker and Holder of every
Security with every other taker and Holder of a Security and the Trustee, that
no one or more Holders of Securities of any Series shall have any right in any
manner whatever, by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other such Holder of Securities,
or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Securities of the applicable Series.
SECTION 5.6 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any provision in this Indenture and any provision of any
Security, the right of any Holder of any Security to receive payment of the
principal of and (subject to Section 2.7) interest on such Security at the
respective rates, in the respective amount on or after the respective due dates
expressed in such Security, or to institute 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 5.7 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default. Except as provided in Section 2.9 and Section 5.5, no right or remedy
herein conferred upon or reserved to the
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Trustee or to the Securityholders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 5.5, every power and remedy given by this Indenture or by law to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or the Securityholders.
SECTION 5.8 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each Series affected(with each
Series treated as a separate class) at the time Outstanding shall have the right
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such Series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that the Trustee shall
have the right to decline to follow any such direction if the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all Series
so affected not joining in the giving of said direction, it being understood
that the Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such Holders.
SECTION 5.9 Waiver of Past Defaults. The Holders of a majority in aggregate
principal amount of the Securities of such Series at the time outstanding may on
behalf of the Holders of all the Securities of such Series waive any past
default hereunder or its consequences, except a default in the payment of the
principal of or interest on any of the Securities of such Series.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.10 Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security, by his
acceptance thereof, shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any Series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such Series, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security.
SECTION 5.11 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and
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enforce any of such rights, either at law or inequity or in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in
this Indenture or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing with respect
to the Securities of any Series, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in its exercise as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect
to the Securities of any Series:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be
read into the document against the Trustee; and
(1) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and any statements, the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of
paragraph (b) of this Section 6.1;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.8.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 6.1.
(e) No provision of this Indenture shall require the Trustee to extend
or risk its own funds or otherwise incur any financial liability unless it
receives indemnity satisfactory to it against any loss, liability or expense.
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(f) 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 in writing with the Company.
SECTION 6.2 Rights of Trustee.
(a) The Trustee may rely on, and shall be protected in relying upon,
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) Subject to the provisions of Section 6.1(c), the Trustee shall not
be liable for any action it takes or omits to take in good faith whichit
believes to be authorized or within its rights or powers.
(d) Before the Trustee acts or refrains from acting, the Trustee may
consult with counsel of its selection and the advice of such counselor any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon in accordance with such advice or Opinion of Counsel.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee indemnity reasonable to it against the costs,expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconductor
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
(g) Prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
Officer's Certificate, or other certificate, statement, instrument,opinion,
report, notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in writing
so to do by the Holders of not less than a majority in aggregate principal
amount of the Securities then outstanding; provided that, if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such examination shall be paid by the Company or,
if advanced by the Trustee, shall be repaid by the Company up on demand.
(h) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(i) The Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions or agreements on the part
of the Company, except as otherwise set forth herein, but the Trustee may
require of the Company full information and advice as to the performance of the
covenants, conditions and agreements contained herein and shall be entitled in
connection herewith to examine the books, records and premises of the Company.
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(j) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its negligence or willful default.
(k) Except for (i) a default under Sections 5.1(a) or (b) hereof, or
(ii) any other event of which the Trustee has "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not be
deemed to have notice of any default or event unless specifically notified in
writing of such event by the Company or the Holders of not less than 25% in
aggregate principal amount of the Securities Outstanding; as used herein, the
term "actual knowledge" means the actual fact or statement of knowing, without
any duty to make any investigation with regard thereto.
SECTION 6.3 Individual Rights of Trustee. The Trustee in its individual or
any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company or its affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent, registrar or co-registrar may do
the same with like rights. However, the Trustee must comply with Sections 6.10
and 6.11.
SECTION 6.4 Trustee's Disclaimer. The Trustee makes no representation as to
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities, it shall
not be responsible for any statement in the registration statement for the
Securities under the Securities Act of 1933, as amended, or in the Indenture or
the Securities (other than its certificate of authentication).
SECTION 6.5 Notice of Defaults. If a default occurs and is continuing with
respect to any Securities of any Series and if the Trustee has actual knowledge
of such default, the Trustee shall give to each Securityholder of such Series
notice of the default within 90 days after such default occurs. Except in the
case of a default described in Section 5.1(a) or (b), the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of
Securityholders of such Series.
SECTION 6.6 Reports by Trustee to Holders. Within 60 days after each [ ] 1
beginning with the [ ] 1 following the date of this Indenture, the Trustee shall
mail to each Securityholder of any Series and each other person specified in TIA
Section 313(c) a brief report dated as of such [ ] 1 that complies with TIA
Section 313(a) to the extent required thereby. The Trustee also shall comply
with TIA Section 313(b). A copy of each report at the time of its mailing to
Securityholders of any Series shall be filed with the Commission and each
securities exchange on which the Securities of any Series are listed. The
Company agrees promptly to notify the Trustee whenever the Securities of any
Series become listed on any securities exchange and of any delisting thereof.
SECTION 6.7 Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, in Dollars such compensation as shall be agreed to in writing
between the Company and the Trustee for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except to the extent any such expense, disbursement or advance may be
attributable to its negligence or willful misconduct; and
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(c) to indemnify the Trustee in Dollars for, and to hold it harmless
against, any loss, liability or expense arising out of or in connection with the
acceptance or administration of this trust or the performance of its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent that
any such loss, liability or expense may be attributable to its negligence or
willful misconduct.
As security for the performance of the obligations of the Company in
this Section 6.7, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in trust to
pay the principal of or interest, if any, on particular Securities.
"Trustee" for purpose of this Section 6.7 includes any predecessor
trustee, provided that the negligence or bad faith of any Trustee shall not be
attributable to any other Trustee.
The Company's payment obligations pursuant to this Section 6.7 shall
constitute additional indebtedness hereunder and shall survive the discharge of
this Indenture. When the Trustee incurs expenses after the occurrence of a
default specified in Sections 5.1(d) and 5.1(e), such expenses (including
reasonable fees and expenses of counsel) are intended to constitute expenses of
administration under bankruptcy law.
SECTION 6.8 Replacement of Trustee. The Trustee may resign at any time
with respect to Securities of one or more Series by so notifying the Company;
provided, however, no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this Section 6.8. The Holders
of a majority in aggregate principal amount of the Outstanding Securities of any
Series may remove the Trustee with respect to such Series at the time
outstanding by so notifying the Trustee and the Company. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of one or more
Series, the Company shall promptly appoint, by resolution of its Board of
Directors, a successor Trustee with respect to the Securities of such Series.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture with respect to the Securities of such Series. The
successor Trustee shall mail a notice of its succession to Securityholders so
affected. The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, subject to the lien provided for in Section
6.7.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate Principal Amount of the Securities at the
time outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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If the Trustee fails to comply with Section 6.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 6.9 Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 6.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1). The Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. Neither the Company nor any person
directly or indirectly controlling, controlled by or under common control with
the Company shall serve as Trustee hereunder. The Trustee shall comply with TIA
Section 310(b).
SECTION 6.11 Referential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by a specified percentage in principal amount of the Securityholders of any or
all Series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of
Securityholders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee. Proof of execution
of any instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Sections 6.1 and
6.2)conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Article.
(b) The ownership of Securities shall be proved by the
Security register.
SECTION 7.2 Proof of Execution of Instruments. Subject to Sections 6.1
and 6.2, the execution of any instrument by a Securityholder or his agent or
proxy may be proved in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
SECTION 7.3 Holders to Be Treated as Owners. The Company, the Trustee
and any agent of the Company or the Trustee may deem and treat the person in
whose name any Security shall be registered upon the Security register for such
Series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and interest on such Security and for all other purposes; and neither the
Company nor the Trustee nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such
person, or upon his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any such Security.
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SECTION 7.4 Securities Owned by Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Company or any other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any other obligor on the Securities with respect to which such determination is
being made shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver only Securities which the Trustee knows are 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
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Securities.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all Series, as the case may be,specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all
Series,as the case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Securities affected by such action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Company, when authorized by a resolution of its Board of Directors, and the
Trustee for the Securities of any and all Series may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act of 1939 as in force at the
date of the execution thereof), in form satisfactory to such Trustee, for one or
more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more Series any property or
assets;
(b) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company pursuant
to Article Nine;
(c) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection of the
Holders of Securities of any or all Series and, if such additional covenants are
to be for the benefit of less than all the Series of Securities, stating that
such covenants are being added solely for the benefit of such Series;
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(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to matters or
questions arising under this Indenture or under any supplemental indenture as
the Board of Directors may deem necessary or desirable and which shall not
materially and adversely affect the interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any Series
as permitted by Sections 2.1 and 2.3; or
(f) 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 the one Trustee, pursuant to the requirements of Section
6.8.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of each Series affected by such supplemental indenture (voting as
one class), the Company, when authorized by a resolution of its Board of
Directors, and the Trustee for such Series of Securities may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Securities of each such Series; provided, however,
that no such supplemental indenture shall (a) extend the final maturity of any
Security, or reduce the principal amount thereof or any premium thereon, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
amount payable on redemption thereof, or impair or affect the right of any
Securityholder to institute suit for payment thereof or, if the Securities
provide therefor, any right of repayment at the option of the Securityholder
without the consent of the Holder of each Security so affected, or (b) reduce
the aforesaid percentage of Securities of any Series, the consent of the Holders
of which is required for any such supplemental indenture, without the consent of
the Holders of each Security so affected, or (c) reduce the amount of principal
payable upon acceleration of the maturity of any Original Issue Discount
Security.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors certified by the secretary or an assistant secretary
of the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee for such Series of Securities of evidence of
the consent of securityholders as aforesaid and other documents, if any,
required by Section 7.1, the Trustee for such Series of Securities shall join
with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects such Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case such Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
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It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall give notice in the manner and to the extent provided in Section 11.4 to
the Holders of Securities of each Series affected thereby at their addresses as
they shall appear on the Security register of the Company, setting forth in
general terms the substance of such supplemental indenture. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the Holders of Securities
of each Series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article Eight complies with the applicable provisions
of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any Series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear, upon the direction of the Company, a notation in form
satisfactory to the Trustee for the Securities of such Series as to any matter
provided for by such supplemental indenture. If the Company or the Trustee shall
so determine, new Securities of any Series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Securities of such Series then outstanding.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, etc. on Certain Terms. The Company
may consolidate with, or sell, convey or lease all or substantially all of its
assets to, or merge with or into, any other corporation, provided that in any
such case, either the Company shall be the continuing corporation, or the
successor corporation shall be organized and validly existing under the laws of
the United States of America or any State thereof or the District of Columbia
and shall expressly assume the due and punctual payment of the principal of and
interest on all the securities according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Company by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation, and (ii) the Company or such successor corporation, as the
case may be, shall not, immediately after such merger or consolidation, or such
sale, conveyance or lease, be in material default in the performance or
observance of any such covenant or condition.
SECTION 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation
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shall succeed to and be substituted for the Company, with the same effect as if
it had been named herein. Such successor corporation may cause to be signed, and
may issue either in its own name or in the name of the Company prior to such
succession any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Company and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall make available for delivery any Securities
which previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance the Company (or any
successor corporation which shall theretofore have become such in the manner
described in this Article) shall be discharged from all obligations and
covenants under this Indenture and the Securities and may be liquidated and
dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall receive an Opinion of Counsel,
prepared in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE: UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Company shall have paid or caused
to be paid the principal of and interest on all the Securities of any Series
Outstanding hereunder (other than Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.9) as and
when the same shall have become due and payable, or (b) the Company shall have
delivered to the Trustee for cancellation all Securities of any Series
theretofore authenticated (other than any Securities of such Series which have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.9) or (c) (i) all the Securities of such Series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and (ii) the Company shall
have irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount (other than moneys repaid by the Trustee or any Paying
Agent to the Company in accordance with Section 10.4) or Government Obligations
maturing as to principal and interest in such amounts and at such times as will
ensure the availability of cash sufficient to pay at maturity or upon redemption
all Securities of such Series (other than any Securities of such Series which
shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.9) not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due to such date
of maturity as the case may be, and if, in any such case, the Company shall also
pay or cause to be paid all other sums payable hereunder by the Company with
respect to Securities of such Series, then this Indenture shall cease to be of
further effect with respect to Securities of such Series (except as to (i)
rights of registration of transfer and exchange, and the Company's right of
optional redemption (provided the Company provides sufficient funds to effect
such optional redemption), (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities, (iii) rights of Holders to receive payments
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of principal thereof and interest thereon upon the original stated due dates
therefor (but not upon acceleration) and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, (iv) the rights, obligations
and immunities of the Trustee hereunder and (v) the rights of the
Securityholders of such Series as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them), and,
subject to Section 10.5, the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Company, shall execute proper instruments acknowledging such satisfaction of
and discharging this Indenture with respect to such Series; provided, that the
rights of Holders of the Securities to receive amounts in respect of principal
of and interest on the Securities held by them shall not be delayed longer than
required by then-applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. The Company agrees to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred and to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this Indenture and the
Securities of such Series.
(B)(i) In addition to the provisions of Section 10.1(A), the
Company may, at its option by or pursuant to, or otherwise in a manner or by
such Persons as may be authorized pursuant to, one or more resolutions duly
adopted by the Board of Directors, at any time with respect to the Securities of
any Series, elect to have defeasance under subsection (i) of this Section
10.1(B) be applied to the Outstanding Securities of such Series provided that
provision therefor is made for such application pursuant to Section 2.3 and the
applicable conditions thereto as set forth in this Section 10.1(B) have been
satisfied.
(ii) Upon the Company's exercise of the option
referenced in Section 10.1(B)(i) applicable to this subsection, the Company may
terminate its obligations under the Outstanding Securities of any Series and
this Indenture with respect to such Series on the date the conditions set forth
below are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities of such Series
and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense and request of the Company, shall execute proper instruments
acknowledging the same), except for the following: (1) the rights of Holders of
Outstanding Securities of such Series to receive payments in respect of the
principal of and interest on such Securities when such payments are due, (2) the
Company's obligations with respect to such Securities under Sections 2.8, 2.9,
3.2, 6.7, 10.4 and 10.5, (3) the rights, powers, trusts, duties and immunities
of the Trustee hereunder, and (4) this Section 10.1(B).
(iii) The following shall be the conditions to the
application of Section 10.1(B) (ii) to the Outstanding Securities of such
Series:
(1) The Company shall have irrevocably deposited
or caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.10 who shall agree to comply with the provisions of
this Section 10.1(B) applicable to it) under the terms of an irrevocable trust
agreement, as trust funds in trust solely for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of Securities of such Series, (I) cash in the
currency or currency unit required, or (II) Government Obligations maturing as
to principal and interest in such amounts (payable in the currency in which the
Securities of such Series are payable) and at such times as are sufficient, to
pay the principal of and interest on the Outstanding Securities of such Series
to maturity or redemption, as the case may be, or (III) a combination thereof,
in each case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (x) the
principal of and each installment of principal of and interest, if any, on the
Outstanding Securities of such Series on the stated maturity of such principal
or installment of principal or interest, if any, and (y) any mandatory sinking
fund payments or analogous payments applicable to the
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Outstanding Securities of such Series on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of such
Securities. Such irrevocable trust agreement shall include, among other things,
(a) provision for the payments referenced in clauses (x) and (y) of the
immediately preceding sentence, (b) the payment of the reasonable expenses of
the Trustee incurred or to be incurred in connection with carrying out such
trust provisions, (c) rights of registration, transfer, substitution and
exchange of Securities of such Series in accordance with the terms stated in
this Indenture and (d) continuation of the rights and obligations and immunities
of the Trustee as against the Holders of Securities of such Series as stated in
this Indenture.
(2) No Event of Default or event which with
notice or lapse of time or both would constitute an Event of Default with
respect to the Securities of such Series shall have occurred and be continuing
on the date of such deposit or, insofar as Sections 5.1(d) and 5.1(e) are
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by which it
is bound.
(4) The Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that Securityholders of such Series
will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and discharge and will be subject to Federal income tax
on the same amounts and in the same manner and at the same time as would have
been the case if such deposit and defeasance had not occurred.
(5) The Company shall have delivered to the
Trustee an Officers' Certificate and Opinion of Counsel, each stating that all
conditions precedent provided for herein relating to the deposit and defeasance
contemplated by this Section 10.1(B) have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys deposited with the Trustee
pursuant to Section 10.1 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the Holders of the particular Securities of
such Series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any Series, all moneys then held by any Paying Agent (other than the Company)
under the provisions of this Indenture with respect to such Series of Securities
shall, upon demand of the Company, be paid to the Trustee and thereupon such
Paying Agent shall be released from all further liability with respect to such
moneys.
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying
Agent. Any moneys deposited with or paid to the Trustee or any Paying Agent
(including the Company acting as its own Paying Agent) for the payment of the
principal of or interest on any Security of any Series and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Company, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, promptly be repaid to the
Company by the Trustee for such Series or such Paying Agent (except that with
respect to any amounts then held by the Company in trust as its own Paying Agent
no such request need be given and at such time the Company shall be discharged
from its duty to hold such moneys in trust as Paying Agent), and the Holder of
the Security of such
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Series shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter look only to the
Company for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any Paying Agent with respect to such moneys shall
thereupon cease. Anything in this Article Ten to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
written request of the Company any money or Government Obligations held by it as
provided in Section 10.1(B)(iii) which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect such defeasance
or covenant defeasance, as the case may be, in accordance with the provisions of
this Indenture.
SECTION 10.5 Reinstatement of Company's Obligations. If the Trustee is
unable to apply any funds or Government Obligations in accordance with Section
10.1 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this indenture and
the Securities of any Series for which such application is prohibited shall be
revived and reinstated as if no deposit had occurred pursuant to Section 10.1
until such time as the Trustee is permitted to apply all such funds or
Government Obligations in accordance with Section 10.1; provided, however, that
if the Company has made any payment of interest on or principal of any of such
Securities because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Securityholders of such Securities to receive
such payment from the funds or Government Obligations held by the Trustee.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, in any Security,
or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the Holders thereof
and as part of the consideration for the issue of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any Person, firm or
corporation, other than the parties hereto, any Paying Agent and their
successors hereunder and the Holders of the Securities any legal or equitable
right, remedy or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the sole benefit
of the parties hereto and their successors and of the Holders of the Securities.
SECTION 11.3 Successors and Assigns of Company Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Company, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Company may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Company is filed by the Company
with the Trustee) to WellPoint Health Networks Inc., 00000 Xxxxxx Xxxxxx,
Xxxxxxxx Xxxxx, XX 00000, Attention: Corporate Secretary. Any notice, direction,
request or demand by
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the Company or any Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made at the
Corporate Trust Office.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed by first-class mail, postage prepaid to such Holders as
their names and addresses appear in the Security register within the time
prescribed. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Company and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
reasonably acceptable to the Trustee shall be deemed to be a sufficient giving
of such notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an 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 demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (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 such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement 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 that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous,or in
the exercise of reasonable care should know that the same are erroneous.Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information with respect to which is in the possession of
the Company, upon the certificate, statement or opinion of or representations by
an officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same 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 that the
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certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. Unless
otherwise specified in a Security, if the date of maturity of interest on or
principal of the Securities of any Series or the date fixed for redemption or
repayment of any such Security shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
which is required by the Trust Indenture Act of 1939, as amended, such required
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act of 1939, as amended, that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
SECTION 11.8 Delaware Law to Govern. This Indenture and each Security
shall be deemed to be a contract under the internal laws of the State of
Delaware (without regard to conflicts of laws provisions thereof), and for all
purposes shall be construed in accordance with the laws of such State.
SECTION 11.9 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings; Gender. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof. The use of the masculine, feminine or neuter
gender herein shall not limit in any way the applicability of any term or
provision hereof.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any Series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
Series except as otherwise specified as contemplated by Section 2.3 for
Securities of such Series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any Series required to be redeemed or
to be redeemed as a whole or in part at the option of the Company shall be given
by giving notice of such redemption as provided in Section 11.4, at least 15
days and not more than forty-five days prior to the date fixed for redemption to
such Holders of Securities of such Series. Failure to give notice by mail, or
any defect in the notice to the Holder of any Security of a Series designated
for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such Series.
The notice of redemption to each such Holder shall specify the date
fixed for redemption, the "CUSIP" number or numbers for such Securities,the
redemption price, the Place or Places of Payment, that payment will be made upon
presentation and surrender of such Securities, that such redemption is pursuant
to the mandatory or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as specified in
such notice, that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue and, if applicable, that a Holder of
Securities who desires to convert Securities for
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redemption must satisfy the requirements for conversion contained in such
Securities, the then existing conversion price or rate and the date and time
when the option to convert shall expire. If less than all of the Securities of
any Series are to be redeemed, the notice of redemption shall specify the
numbers of the Securities of such Series to be redeemed. In case any Security of
a Series is to beredeemed in part, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such Series in principal amount equal to the
unredeemed Portion thereof will be issued.
The notice of redemption of Securities of any Series to beredeemed at
the option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.If such
notice is to be given by the Trustee, the Company shall provide notice of such
redemption to the Trustee at least forty-five days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee). If
such notice is given by the Company, the Company shall provide a copy of such
notice given to the Holders of such redemption to the Trustee at least 3
Business Days prior to the date such notice is given to such Holders, but in any
event at least 15 days prior to the date fixed for redemption (unless a shorter
notice shall be satisfactory to the Trustee).
Unless otherwise specified pursuant to Section 2.3, not later than the
redemption date specified in the notice of redemption given as provided in this
Section, the Company will have on deposit with the Trustee or with one or more
Paying Agents (or, if the Company is acting as its own Paying Agent, set aside,
segregate and hold in trust as provided in Section 3.4) in funds available on
such date an amount of money sufficient to redeem on the redemption date all the
Securities of such Series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If less
than all the Outstanding Securities of a Series are to be redeemed, the Company
will deliver to the Trustee at least forty-five days prior to the date fixed for
redemption an Officers' Certificate stating the aggregate principal amount of
Securities to be redeemed.
If less than all the Securities of a Series are to beredeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part and the Trustee
shall promptly notify the Company in writing of the Securities of such Series
selected for redemption and, in the case of any Securities of such Series
selected for partial redemption, the principal amount thereof to be
redeemed.However, 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 forty-five
days prior to the relevant redemption date. Securities may be redeemed in part
in multiples equal to the minimum authorized denomination for Securities of such
Series or any multiple thereof. For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the redemption of
Securities of any Series shall relate, in the case of any Security redeemed or
to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date)interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and, except as provided in Sections 6.1 and 10.4, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a Place of Payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable
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redemption price, together with interest accrued thereon to the date fixed for
redemption; provided that if for any Securities the date fixed for redemption is
a regular interest payment date, payment of interest becoming due on such date
shall be payable to the Holders of such Securities registered as such on the
relevant record date subject to the terms and provisions of Section 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest borne by the Security.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to or on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 30 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
SECTION 12.5 Mandatory and Optional Sinking Funds. 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." The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Series of Securities in cash, the Company may at its option
(a) deliver to the Trustee securities of such Series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired(except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c)receive credit for
Securities of such Series (not previously so credited)redeemed by the Company
through any optional redemption provision contained in the terms of such Series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the forty-fifth day next preceding each sinking fund
payment date for any Series of Securities, the Company will deliver to the
Trustee a written statement (which need not contain the statements required by
Section 11.5) signed by an authorized officer of the Company (a) specifying the
portion of the mandatory sinking fund payment to be satisfied by payment of
cash(except as otherwise specified pursuant to Section 2.3 for the Securities of
such Series), and the portion to be satisfied by delivery or credit of
Securities of such Series, (b) stating that none of the Securities of such
Series for which credit is sought has theretofore been so credited, (c) stating
that no defaults in the payment of interest or Events of Default with respect to
such Series have occurred (which have not been waived or cured) and are
continuing, (d) stating whether or not the Company intends to exercise its right
to make an optional sinking fund payment with respect to such Series and, if
so,specifying the amount of such optional sinking fund payment which the Company
intends to pay on or before the next succeeding sinking fund payment date and(e)
specifying such sinking fund payment date. Any Securities of such Series to be
credited and required to be delivered on the Trustee in order for the Company to
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be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such written statement. Such written statement shall be
irrevocable and upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment
date.Failure of the Company, on or before any such forty-fifth day, to deliver
such written statement and Securities specified in this paragraph, if any, shall
not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such Series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
Series in respect thereof and (ii) that the Company will make no optional
sinking fund payment with respect to such Series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$100,000 (or a lesser sum if the Company shall so request) with respect to the
Securities of any particular Series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
Series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $100,000 or less and the
Company makes no such request then it shall be carried over until a sum in
excess of $100,000 is available. The Trustee shall select, in the manner
provided in Section 12.2 and giving effect to any exclusions required pursuant
to Section 12.4, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such Series to absorb said cash, as nearly as
may be possible, and shall (if requested in writing by the Company) inform the
Company of the serial numbers of the Securities of such Series (or portions
thereof) so selected. The Trustee, in the name and at the expense of the
Company(or the Company, if it shall so notify the Trustee in writing), shall
cause notice of redemption of the Securities of such Series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such Series at the option
of the Company. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such Series shall be added to the
next cash sinking fund payment for such Series and, together with such
payment,shall be applied in accordance with the provisions of this Section. Any
and all sinking fund moneys held on the stated maturity date of the Securities
of any particular series (or earlier, if such maturity is accelerated), which
are not held for the payment or redemption of particular Securities of such
Series shall be applied, together with other moneys, if necessary, sufficient
for the purpose, to the payment of the principal of, and interest on, the
Securities of such Series at maturity.
Unless otherwise specified pursuant to Section 2.3, not later than the
sinking fund payment date, the Company shall have paid to the Trustee in cash or
shall otherwise provide in funds available on such date for the payment of all
principal and interest accrued to the date fixed for redemption on Securities to
be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a Series with sinking fund moneys or mail or publish any notice of redemption of
Securities for such Series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the mailing or publication of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Company a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such Series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.9 or the default cured on or before the sixtieth
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
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SECTION 12.6 Repayment at the Option of the Holders. Securities of any
Series which are repayable at the option of the Holders thereof before their
stated maturity shall be repaid in accordance with the terms of the Securities
of such Series.
The repayment of any principal amount of Securities pursuant to such
option of the Holder to require repayment of Securities before their stated
maturity, for purposes of Section 10.1, shall not operate as a
payment,redemption or satisfaction of the indebtedness represented by such
Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled.
SECTION 12.7 Conversion Arrangement on Call for Redemption. In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any Securities called for redemption by an agreement
with one or more investment bankers or other purchasers to purchase such
Securities by paying to the Trustee or the Paying Agent in trust for the Holders
of Securities, on or before 10:00 a.m. California time on the redemption date,
an amount not less than the redemption price, together with interest, if
any,accrued to the redemption date of such Securities, in immediately available
funds. Notwithstanding anything to the contrary contained in this Article
Twelve, the obligation of the Company to pay the redemption price of such
Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and surrendered by such purchasers for
conversion,all as of immediately prior to the close of business on the last day
on which Securities of such series called for redemption may be converted in
accordance with this Indenture and the terms of such Securities, subject to
payment to the Trustee or Paying Agent of the above-described amount. The
Trustee or the Paying Agent shall hold and pay to the Holders whose Securities
are selected for redemption any such amount paid to it in the same manner as it
would pay moneys deposited with it by the Company for the redemption of
Securities. Without the Trustee's and the Paying Agent's prior written consent,
no arrangement between the Company and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties,responsibilities or obligations of the Trustee and the Paying
Agent as set forth in this Indenture, and the Company agrees to indemnify the
Trustee and the Paying Agent from, and hold them harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Securities between the Company and such
purchasers, including the costs and expenses incurred by the Trustee and the
Paying Agent (including the fees and expenses of their agents and counsel) in
the defense of any claim or liability arising out of or in connection with the
exercise or performance of any of their powers, duties, responsibilities or
obligations under this Indenture.
ARTICLE XIII
CONVERSION OF SECURITIES
SECTION 13.1 Applicability of Article. Securities of any series which
are convertible into Common Shares at the option of the Holder of such
Securities shall be convertible in accordance with their terms and (unless
otherwise specified as contemplated by Section 2.3 for the Securities of any
series) in accordance with this Article. Each reference in this Article Thirteen
to "a Security" or "the Securities" refers to the Securities of the particular
Series that is convertible into Common Shares. If more than one Series of
Securities with conversion privileges are Outstanding at any time, the
provisions of this Article Thirteen shall be applied separately to each such
series.
SECTION 13.2 Right of Holders to Convert Securities into Common Shares.
Subject to and upon compliance with the terms of the Securities and the
provisions of Section 12.7 and this Article Thirteen, at the option of the
Holder thereof, any Security of any series of any authorized denomination which
is convertible into
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Common Shares, or any portion of the principal amount thereof which is $1,000 or
any integral multiple of $1,000, may, at any time during the period specified in
the Securities of such series, or in case such Security or portion thereof shall
have been called for redemption, then in respect of such Security or portion
thereof until and including, but not after(unless the Company shall default in
payment due upon the redemption thereof)the close of business on the redemption
date (except that in the case of repayment at the option of the Holder, if
specified in the terms of the relevant Security, such right shall terminate upon
the Company's receipt of written notice of the exercise of such option), be
converted into duly authorized,validly issued, fully paid and nonassessable
Common Shares, as specified in such Security, at the conversion price or
conversion rate for each $1,000 principal amount of Securities (such initial
conversion rate reflecting an initial conversion price specified in such
Security) in effect on the conversion date,or, in case an adjustment in the
conversion price has taken place pursuant to the provisions of this Article
Thirteen, then at the applicable conversion price as so adjusted, upon surrender
of the Security or Securities, the principal amount of which is so to be
converted, to the Company at any time during usual business hours at the office
or agency to be maintained by it in accordance with the provisions of Section
3.2, accompanied by a written notice of election to convert as provided in
Section 13.3 and, if the Holder requests that the Common Shares be registered in
a name other than that of the Holder, by a written instrument or instruments of
transfer in form satisfactory to the Company and/or the Trustee, as applicable,
duly executed by the Holder thereof or his attorney duly authorized in writing.
All Securities surrendered for conversion shall, if surrendered to the Company
or any conversion agent, be delivered to the Trustee for cancellation and
cancelled by it, or shall, if surrendered to the Trustee,be cancelled by it, as
provided in Section 2.10.
The initial conversion price or conversion rate in respect of a Series
of Securities shall be as specified in the Securities of such Series.The
conversion price or conversion rate will be subject to adjustment on the terms
set forth in Section 13.5 or such other or different terms, if any, as maybe
specified by Section 2.3 for Securities of such Series. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of any portion of it.
SECTION 13.3 Issuance of Common Shares on Conversions. As promptly as
practicable after the surrender, as herein provided, of any Security or
Securities for conversion into Common Shares, the Company shall deliver or cause
to be delivered at its said office or agency to or upon the written order of the
Holder of the Security or Securities so surrendered a certificate or
certificates representing the number of duly authorized, validly issued, fully
paid and nonassessable Common Shares into which such Security or Securities
maybe converted in accordance with the terms thereof and the provisions of this
Article Thirteen. Prior to delivery of such certificate or certificates, the
Company shall require written notice at its said office or agency from the
Holder of the Security or Securities so surrendered stating that the Holder
irrevocably elects to convert such Security or Securities, or, if less than the
entire principal amount thereof is to be converted, stating the portion thereof
to be converted. Such notice shall also state the name or names (with address
and social security or other taxpayer identification number) in which said
certificate or certificates are to be issued. Such conversion shall be deemed to
have been made at the time that such Security or Securities shall have been
surrendered for conversion and such notice shall have been received by the
Company or the Trustee, the rights of the Holder of such Security or Securities
as a Holder shall cease at such time, the Person or Persons entitled to receive
the Common Shares upon conversion of such Security or Securities shall be
treated for all purposes as having become either record holder or holders of
such Common Shares at such time and such conversion shall be at the conversion
price in effect at such time. In the case of any Security of any Series which is
converted in part only, upon such conversion, the Company shall execute and,upon
the Company's request and at the Company's expense, the Trustee or an
authenticating agent shall authenticate and deliver to the Holder thereof, as
requested by such Holder, a new Security or Securities of such Series of
authorized denominations in aggregate principal amount equal to the unconverted
portion of such Security.
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If the last day on which such Security may be converted is not a
Business Day in a place where the conversion agent for that Security is located,
such Security may be surrendered to that conversion agent on the next succeeding
day that is a Business Day.
The Company shall not be required to deliver certificates for Common
Shares upon conversion while its stock transfer books are closed for a meeting
of shareholders or for the payment of dividends or for any other purpose, but
certificates for Common Shares shall be delivered as soon as the stock transfer
books shall again be opened.
SECTION 13.4 No Payment or Adjustment for Interest or Dividends. Unless
otherwise specified as contemplated by Section 2.3 for Securities of such
Series, Securities surrendered for conversion into Common Shares during the
period from the close of business on any regular record date(or special record
date) next preceding any interest payment date to the opening of business on
such interest payment date (except Securities called for redemption on a
redemption date within such period) when surrendered for conversion must be
accompanied by payment (by certified or official bank check to the order of the
Company payable in clearing house funds at the location where the Securities are
surrendered) of an amount equal to the interest thereon which the Holder is
entitled to receive on such interest payment date. Payment of interest shall be
made, on such interest payment date or such other payment date (as set forth in
Section 2.7), as the case may be, to the Holder of the Securities as of such
regular record date or special record date, as applicable.Except where
Securities surrendered for conversion must be accompanied by payment as
described above, no interest on converted Securities will be payable by the
Company on any interest payment date subsequent to the date of conversion. No
other payment or adjustment for interest or dividends is to be made upon
conversion. Notwithstanding the foregoing, upon conversion of any Original Issue
Discount Security, the fixed number of Common Shares into which such Security is
convertible delivered by the Company to the Holder thereof shall be applied,
first, to the portion attributable to the accrued original issue discount
relating to the period from the date of issuance to the date of conversion of
such Security, and, second, to the portion attributable to the balance of the
principal amount of such Security.
SECTION 13.5 Adjustment of Conversion Price. Unless otherwise specified
as contemplated by Section 2.3 for Securities of such Series, the conversion
price for Securities convertible into Common Shares shall be adjusted from time
to time as follows:
(a) In case the Company shall (x) pay a dividend or make a
distribution on Common Shares in Common Shares, (y) subdivide the outstanding
Common Shares into a greater number of shares or (z) combine the outstanding
Common Shares into a smaller number of shares, the conversion price for the
Securities of such Series shall be adjusted so that the Holder of any such
Security thereafter surrendered for conversion shall be entitled to receive the
number of Common Shares which he would have owned or have been entitled to
receive after the happening of any of the events described above had such
Security been converted immediately prior to the record date in the case of a
dividend or the effective date in the case of subdivision or combination. An
adjustment made pursuant to this subsection (a) shall become effective
immediately after the record date in the case of a dividend, except as provided
in subsection (h) below, and shall become effective immediately after the
effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to all
holders of Common Shares entitling them (for a period expiring within 45 days
after the record date mentioned below) to subscribe for or purchase Common
Shares at a price per share less than the current market price per share of
Common Shares (as defined for purposes of this subsection (b) in subsection (e)
below), at the record date for the determination of stockholders entitled to
receive such rights or warrants, the conversion price in effect immediately
prior thereto shall be adjusted so that the same shall equal the price
determined by multiplying the conversion price in effect immediately prior to
such record date by a fraction, the numerator of which shall be the number of
Common Shares outstanding on such record date plus the number of Common Shares
which the
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aggregate offering price of the total number of Common Shares so offered would
purchase at such current market price, and the denominator of which shall be the
number of Common Shares outstanding on such record date plus the number of
additional Common Shares receivable upon exercise of such rights or warrants.
Such adjustment shall be made successively whenever any such rights or warrants
are issued, and shall become effective immediately, except as provided in
subsection (h) below, after such record date. In determining whether any rights
or warrants entitle the Holders of the Securities of such Series to subscribe
for or purchase Common Shares at less than such current market price, and in
determining the aggregate offering price of such Common Shares, there shall be
taken into account any consideration received by the Company for such rights or
warrants plus the exercise price thereof, the value of such consideration or
exercise price, as the case may be, if other than cash, to be determined by the
Board of Directors.
(c) In case the Company shall distribute to all holders of
Common Shares any shares of capital stock of the Company (other than Common
Shares) or evidences of its indebtedness or assets excluding cash dividends or
distributions paid from retained earnings of the Company) or rights or warrants
to subscribe for or purchase any of its securities (excluding those rights or
warrants referred to in subsection (b) above) (any of the foregoing being herein
in this subsection (c) called the "Special Securities"), then, in each such
case, unless the Company elects to reserve such Special Securities for
distribution to the Holders of Securities of such Series upon the conversion so
that any such Holder converting such Securities will receive upon such
conversion, in addition to the Common Shares to which such Holder is entitled,
the amount and kind of Special Securities which such Holder would have received
if such Holder had, immediately prior to the record date for the distribution of
the Special Securities, converted Securities into Common Shares, the conversion
price shall be adjusted so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to such record date
by a fraction the numerator of which shall be the current market price per share
(as defined for purposes of this subsection (c) in subsection (e) below) of
Common Shares on the record date mentioned above less the then fair market value
(as determined by the Board of Directors, whose determination shall, if made in
good faith, be conclusive) of the portion of the Special Securities so
distributed applicable to one Common Share, and the denominator of which shall
be the current market price per Common Shares (as defined in subsection (e)
below); provided, however, that in the event the then fair market value (as so
determined) of the portion of the Special Securities so distributed applicable
to one Common Share is equal to or greater than the current market price per
Common Share (as defined in subsection (e) below) on the record date mentioned
above, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder of Securities of such Series shall have the right to receive
the amount and kind of Special Securities such holder would have received had he
converted such Securities immediately prior to the record date for the
distribution of the Special Securities. Such adjustment shall become effective
immediately, except as provided in subsection (h) below, after the record date
for the determination of stockholders entitled to receive such distribution.
(d) If, pursuant to subsection (b) or (c) above, the
conversion price shall have been adjusted because the Company has declared a
dividend, or made a distribution, on the outstanding Common Shares in the form
of any right or warrant to purchase securities of the Company, or the Company
has issued any such right or warrant, then, upon the expiration of any such
unexercised right or unexercised warrant, the conversion price shall forthwith
be adjusted to equal the conversion price that would have applied had such right
or warrant never been declared, distributed or issued.
(e) For the purpose of any computation under subsection (b)
above, the current market price per Common Share on any date shall be deemed to
be the average of the reported last sales prices for the thirty consecutive
Trading Days (as defined below) commencing forty-five Trading Days before the
date in question. For the purpose of any computation under subsection (c) above,
the current market price per Common Share on any date shall be deemed to be the
average of the reported last sales prices for the ten consecutive Trading Days
before the date in question. The reported last sales price for each day (whether
for purposes of subsection (b) or subsection (c)) shall be the reported last
sales price, regular way, or, in case no sale takes place on such day, the
average of the reported closing bid and asked prices, regular way, in either
case as reported on
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the New York Stock Exchange Composite Tape or, if the Common Shares are not
listed or admitted to trading on the New York Stock Exchange, on the principal
national securities exchange on which the Common Shares are listed or admitted
to trading or, if not listed or admitted to trading on any national securities
exchange, on the National Market of the National Association of Securities
Dealers, Inc. Automated Quotations System ("NASDAQ") or, if the Common Shares
are not quoted on such National Market, the average of the closing bid and asked
prices on such day in the over- the-counter market as reported by NASDAQ or, if
bid and asked prices for the Common Shares on each such day shall not have been
reported through NASDAQ, the average of the bid and asked prices for such day as
furnished by any New York Stock Exchange member firm regularly making a market
in the Common Shares selected for such purpose by the Board of Directors or a
committee thereof or, if no such quotations are available, the fair market value
of the Common Shares as determined by a New York Stock Exchange member firm
regularly making a market in the Common Shares selected for such purpose by the
Board of Directors or a committee thereof or, if no such quotations are
available, the fair market value of the Common Shares as determined by a New
York Stock Exchange member firm regularly making a market in the Common Shares
selected for such purpose by the Board of Directors or a committee thereof. As
used herein, the term "Trading Day" with respect to the Common Shares means (x)
if the Common Shares are listed or admitted for trading on the New York Stock
Exchange or another national securities exchange, a day on which the New York
Stock Exchange or such other national securities exchange is open for business
or (y) if the Common Shares are quoted on the National Market of the NASDAQ, a
day on which trades may be made on such National Market or (z) otherwise, any
day other than a Saturday or Sunday or a day on which banking institutions in
the State of New York are authorized or obligated by law or executive order to
close.
(f) No adjustment in the conversion price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of this
subsection (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment; and, provided, further, that
adjustment shall be required and made in accordance with the provisions of this
Article Thirteen (other than this subsection (f)) not later than such time as
may be required in order to preserve the tax free nature of a distribution to
the holders of Common Shares. All calculations under this Article Thirteen shall
be made to the nearest cent or to the nearest 1/100 of a share, as the case may
be, with one-half cent and 1/200 of a share, respectively, being rounded upward.
Anything in this Section 13.5 to the contrary notwithstanding, the Company shall
be entitled to make such reductions in the conversion price, in addition to
those required by this Section 13.5, as it in its discretion shall determine to
be advisable in order that any stock dividend, subdivision of shares,
distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by the
Company to its shareholders shall not be taxable.
(g) Whenever the conversion price is adjusted, as herein
provided, the Company shall promptly file with the Trustee, at the Corporate
Trust Office of the Trustee, and with the office or agency maintained by the
Company for the conversion of Securities of such Series pursuant to Section 3.2,
an Officers' Certificate, setting forth the conversion price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the correctness of
such adjustment. Neither the Trustee nor any conversion agent shall be under any
duty or responsibility with respect to any such certificate or any facts or
computations set forth therein, except to exhibit said certificate from time to
time to any Holder of a Security of such Series desiring to inspect the same.
The Company shall promptly cause a notice setting forth the adjusted conversion
price to be mailed to the Holders of Securities of such Series, as their names
and addresses appear upon the Security register of the Company.
(h) In any case in which this Section 13.5 provides that an
adjustment shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (y) issuing to the
Holder of any Security of such Series converted after such record date and
before the occurrence of such event the additional Common Shares issuable upon
such conversion by reason of the adjustment required by such event over and
above the Common Shares issuable upon such conversion before
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giving effect to such adjustment and (z) paying to such holder any amount in
cash in lieu of any fractional Common Shares pursuant to Section 13.6 hereof.
SECTION 13.6 No Fractional Shares to Be Issued. No fractional Common
Shares shall be issued upon any conversion of Securities. If more than Security
of any Series shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities of such Series (or specified portions thereof to the extent permitted
hereby) so surrendered. Instead of a fraction of a share of Common Stock which
would otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment (computed
to the nearest cent, with one-half cent being rounded upward) in respect of such
fraction of a share in an amount equal to the same fractional interest of the
reported last sales price (as defined in Section 13.5(e)) of the Common Shares
on the Trading Day (as defined in Section 13.5(e)) next preceding the day of
conversion.
SECTION 13.7 Preservation of Conversion Rights upon Consolidation,
Merger, Sale or Conveyance. In case of any consolidation of the Company with, or
merger of the Company into, any other corporation (other than a consolidation or
merger in which the Company is the continuing corporation), or in the case of
any sale or transfer of all or substantially all of the assets of the Company,
the corporation formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee, a
supplemental indenture, in accordance with the provisions of Articles Eight and
Nine as they relate to supplemental indentures, providing that the Holder of
each Security then Outstanding of a Series which was convertible into Common
Shares shall have the right thereafter to convert such Security into the kind
and amount of shares of stock and other securities and property, including cash,
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of Common Shares of the Company into which such Securities might have
been converted immediately prior to such consolidation, merger, sale or
transfer. Such supplemental indenture shall conform to the provisions of the
Trust Indenture Act of 1939 as then in effect and shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article Thirteen. Neither the Trustee nor any conversion
agent shall have any liability or responsibility for determining the correctness
of any provision contained in any such supplemental indenture relating either to
the kind or amount of shares of stock or other securities or property receivable
by Holders of the Securities upon the conversion of their Securities after any
such consolidation, merger, sale or transfer, or to any adjustment to be made
with respect thereto and, subject to the provisions of Section 313 of the Trust
Indenture Act of 1939, may accept as conclusive evidence of the correctness of
any such provisions, and shall be protected in relying upon, an Officers'
Certificate with respect thereto and an Opinion of Counsel with respect to legal
matters related thereto. If in the case of any such consolidation, merger, sale
or transfer, the stock or other securities and property receivable by a Holder
of the Securities includes stock or other securities and property of a
corporation other than the successor or purchasing corporation, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders
of the Securities as the Board of Directors shall reasonably consider
necessary.The above provisions of this Section 13.7 shall similarly apply to
successive consolidations, mergers,sales or transfers.
SECTION 13.8 Notice to Holders of the Securities of a Series Prior to
Taking Certain Types of Action. With respect to the Securities of any Series, in
case:
(a) the Company shall authorize the issuance to all holders of
Common Shares of rights or warrants to subscribe for or purchase shares of its
capital stock or of any other right;
(b) the Company shall authorize the distribution to all
holders of Common Shares of evidences of indebtedness or assets (except for cash
dividends or distributions paid from retained earnings of the Company);
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(c) of any subdivision or combination of Common Shares or of
any consolidation or merger to which the Company is a party and for which
approval by the shareholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall cause to be filed with the Trustee and at the office or
agency maintained for the purpose of conversion of Securities of such Series
pursuant to Section 3.2, and shall cause to be mailed to the Holders of
Securities of such Series, at their last addresses as they shall appear on the
Security register of the Company, at least ten days prior to the applicable
record date hereinafter specified, a notice stating (i) the date as of which the
holders of Common Shares to be entitled to receive any such rights, warrants or
distribution are to be determined, or (ii) the date on which any such
subdivision, combination, consolidation, merger, sale, transfer,
dissolution,liquidation, winding up or other action is expected to become
effective, and the date as of which it is expected that holders of record of
Common Shares shall be entitled to exchange their Common Shares for securities
or other property, if any, deliverable upon such subdivision, combination,
consolidation, merger,sale, transfer, dissolution, liquidation, winding up or
other action. The failure to give the notice required by this Section 13.8 or
any defect therein shall not affect the legality or validity of any
distribution, right, warrant,subdivision, combination, consolidation, merger,
sale, transfer, dissolution,liquidation, winding up or other action, or the vote
upon any of the foregoing.
SECTION 13.9 Covenant to Reserve Shares for Issuance on Conversion of
Securities. The Company covenants that at all times it will reserve and keep
available out of each class of its authorized Common Shares,free from preemptive
rights, solely for the purpose of issue upon conversion of Securities of any
Series as herein provided, such number of Common Shares as shall then be
issuable upon the conversion of all Outstanding Securities of such Series. The
Company covenants that all Common Shares which shall be so issuable shall, when
issued or delivered, be duly and validly issued Common Shares into which
Securities of such Series are convertible, and shall be fully paid and
nonassessable, free of all liens and charges and not subject to preemptive
rights and that, upon conversion, the appropriate capital stock accounts of the
Company will be duly credited.
SECTION 13.10 Compliance with Governmental Requirements. The Company
covenants that if any Common Shares required to be reserved for purposes of
conversion of Securities hereunder require registration or listing with or
approval of any governmental authority under any Federal or State law, pursuant
to the Securities Act of 1933, as amended, or the Securities Exchange Act of
1934, as amended, or any national or regional securities exchange on which the
Common Shares are listed at the time of delivery of any Common Shares, be fore
such shares may be issued upon conversion, the Company will use its best efforts
to cause such shares to be duly registered, listed or approved, as the case
may be.
SECTION 13.11 Payment of Taxes upon Certificates for Shares Issued upon
Conversion. The issuance of certificates for Common Shares upon the conversion
of Securities shall be made without charge to the converting Holders for any tax
(including, without limitation, all documentary and stamp taxes) in respect of
the issuance and delivery of such certificates, and such certificates shall be
issued in the respective names of, or in such names as may be directed by, the
holders of the Securities converted; provided, however, that the Company shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificate in a name other
than that of the Holder of the Security converted, and the Company shall not be
required to issue or deliver such certificate unless or until the Person or
Persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
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SECTION 13.12 Trustee's Duties with Respect to Conversion Provisions.
The Trustee and any conversion agent shall have no duty,responsibility or
liability to any Holder to determine whether any facts exist which may require
any adjustment of the conversion rate, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. Neither the Trustee nor any conversion agent shall be accountable with
respect to the registration under securities laws, listing,validity or value (or
the kind or amount) of any Common Shares, or of any other securities or
property, which may at any time be issued or delivered upon the conversion of
any Security, and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any conversion
agent shall be responsible for any failure of the Company to make any cash
payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion; and the Trustee and any conversion agent, subject
to the provisions of Section 313 of the TIA, shall not be responsible for any
failure of the Company to comply with any of the covenants of the
Company contained in this Article Thirteen.
SECTION 13.13 Conversion of Securities into Preferred Stock.
Notwithstanding anything to the contrary in this Article Thirteen, the
Company may issue Securities that are convertible into Preferred Shares,
including Preferred Shares convertible into Common Shares, in which case all
terms and conditions relating to the conversion of Securities into Preferred
Shares,including any terms similar to those provided in Sections 13.1 through
13.12,shall be as provided in or pursuant to an appropriate resolution of the
Board of Directors or in any indenture supplemental hereto or as otherwise
contemplated by Section 2.3.
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.1 Securities Subordinated to Senior Indebtedness. The
Company covenants and agrees, and each Holder of Securities, by his acceptance
thereof, likewise covenants and agrees, that the indebtedness represented by the
Securities and the payment of any and all amounts payable in respect of each and
all of the Securities is hereby expressly subordinated, to the extent and in the
manner hereinafter set forth, in right of payment to the prior payment in full
of Senior Indebtedness, whether outstanding on the date of this Indenture or
thereafter incurred, assumed or guaranteed.
In the event (a) of any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the Company whether in
a bankruptcy, insolvency, reorganization or receivership proceeding or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise, except a distribution in connection
with a merger or consolidation or a conveyance or transfer of all or
substantially all of the properties of the Company which complies with the
requirements of Article Nine, or (b) that a default shall have occurred and be
continuing with respect to the payment of any amount payable in respect of any
Senior Indebtedness, or (c) that the principal of the Securities of any Series
shall have been declared due and payable pursuant to Section 5.1 and such
declaration shall not have been rescinded and annulled as provided in Section
5.1, then:
(1) in a circumstance described in the foregoing clause (a) or
(b) the holders of all Senior Indebtedness, and in the circumstance described in
the foregoing clause (c) the holders of all Senior Indebtedness outstanding at
the time the principal of such Securities (or in the case of Original Issue
Discount Securities, such portion of the principal amount) shall have been so
declared due and payable, shall first be entitled to receive payment of the full
amount due thereon, or provision shall be made for such payment in money or
money's worth, before the Holders of any of the Securities are entitled to
receive any payment in respect of the indebtedness evidenced by the Securities;
45.
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(2) any payment by, or distribution of assets of, the Company
of any kind or character, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted or securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in this Article with respect to the Securities, to the payment of all
Senior Indebtedness, provided that the rights of the holders of the Senior
Indebtedness are not altered by such reorganization or readjustment), to which
the Holders of any of the Securities would be entitled except for the provisions
of this Article shall be paid or delivered by the person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instrument evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of such 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
(or provision therefor) to the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of the indebtedness evidenced by
the Securities under this Indenture; and
(3) in the event that, notwithstanding the foregoing, any
payment by, or distribution of assets of, the Company of any kind or character,
whether in cash, property or securities (other than securities of the Company as
reorganized or readjusted or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article with respect to the
Securities, to the payment of all Senior Indebtedness, provided that the rights
of the holders of Senior Indebtedness are not altered by such reorganization or
readjustment), shall be received by the Holders of any of the Securities before
all Senior Indebtedness is paid in full, 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 (or
provision therefor) to the holders of such Senior Indebtedness.
SECTION 14.2 Subrogation. Subject to the payment in full of all Senior
Indebtedness to which the indebtedness evidenced by the Securities is in the
circumstances subordinated as provided in Section 14.1, the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until all
amounts owing on the Securities shall be paid in full, and, as between the
Company, its creditors other than holders of such Senior Indebtedness, and the
Holders of the Securities, no such payment or distribution made to the holders
of such Senior Indebtedness by virtue of this Article which otherwise would have
been made to the Holders of the Securities shall be deemed to be a payment by
the Company on account of such Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of Senior Indebtedness.
SECTION 14.3 Obligation of the Company Unconditional. Nothing contained
in this Article or elsewhere in this Indenture or in the Securities is intended
to or shall impair, as between the Company, its creditors other than the holders
of Senior Indebtedness, and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of and interest on and any additional amounts owing in
respect of the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of Senior Indebtedness nor shall anything herein or therein prevent
the Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of
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the holders of Senior Indebtedness in respect of cash, property or securities of
the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which any such dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of the Company is pending or upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of creditors,
liquidating trustee or agent or other person making any payment or distribution,
delivered to the Trustee or to the Holders of the Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 14.4 Payments on Securities Permitted. Nothing contained in
this Article or elsewhere in this Indenture, or in any of the Securities, shall
affect the obligation of the Company to make, or prevent the Company from
making, payment of the principal of or interest on or any additional amounts
owing in respect of the Securities in accordance with the provisions hereof and
thereof, except as otherwise provided in this Article.
SECTION 14.5 Effectuation of Subordination by Trustee. Each Holder of
Securities, by his acceptance thereof, authorizes and directs the Trustee in his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his attorney-in-
fact for any and all such purposes.
SECTION 14.6 Knowledge of Trustee. Notwithstanding the provisions of
this Article or any other provisions of this Indenture, the Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment of moneys to or by the Trustee, or the taking of any
other action by the Trustee, unless and until the Trustee shall have received
written notice thereof from the Company, any Holder of Securities, any paying or
conversion agent of the Company or the holder or representative of any class of
Senior Indebtedness; provided, however, that if the Trustee shall not have
received the notice provided for in this Section at least three Business Days
prior to the date upon which, by the terms hereof, any money may become payable
for any purpose (including, without limitation, the payment of the principal of
or interest on, or additional amounts owing in respect of, any Security) then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have all power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it during or after such three
Business Day period.
SECTION 14.7 Trustee May Hold Senior Indebtedness. The Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness at the time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in Section
313 of the TIA or elsewhere in this Indenture shall deprive the Trustee of any
of its rights as such holder.
Nothing in this Article shall subordinate any claims of, or payments
to, the Trustee (under or pursuant to Section 6.7) to Senior Indebtedness.
SECTION 14.8 Rights of Holders of Senior Indebtedness Not Impaired. No
right of any present or future holder of any Senior Indebtedness to enforce the
subordination herein shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or by any non-
compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
WELLPOINT HEALTH NETWORKS INC.
By:
---------------------------
Name:
Title:
ATTEST:
By:
--------------------------------
Name:
Title:
[ ,]
as Trustee
By:
---------------------------
Name:
Title:
ATTEST:
By:
--------------------------------
Name:
Title:
48.
