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ROYAL GOLD, INC.
TO
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Trustee
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INDENTURE
Dated as of ___________, 199_
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[Senior] [Subordinated] Securities
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Royal Gold, Inc.
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
(S) 310(a)(1) .............................. 6.9
(a)(2) .............................. 6.9
(a)(3) .............................. Not Applicable
(a)(4) .............................. Not Applicable
(b) .............................. 6.8
.............................. 6.10
(S) 311(a) .............................. 6.13
(b) .............................. 6.13
(S) 312(a) .............................. 7.1
.............................. 7.2
(b) .............................. 7.2
(c) .............................. 7.2
(S) 313(a) .............................. 7.3
(b) .............................. 7.3
(c) .............................. 7.3
(d) .............................. 7.3
(S) 314(a) .............................. 7.4
(a)(4) .............................. 1.1
.............................. 10.4
(b) .............................. Not Applicable
(c)(1) .............................. 1.2
(c)(2) .............................. 1.2
(c)(3) .............................. Not Applicable
(d) .............................. Not Applicable
(e) .............................. 1.2
(S) 315(a) .............................. 6.2
(b) .............................. 6.2
(c) .............................. 6.1
(d) .............................. 6.1
(e) .............................. 5.14
(S) 316(a) .............................. 1.1
(a)(1)(A) .............................. 5.2
.............................. 5.12
(a)(1)(B) .............................. 5.13
(a)(2) .............................. Not Applicable
(b) .............................. 5.8
(c) .............................. 1.4
(S) 317(a)(1) .............................. 5.3
(a)(2) .............................. 5.4
(b) .............................. 10.3
(S) 318(a) .............................. 1.7
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NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS*
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PARTIES.................................................................... 1
RECITALS OF THE COMPANY.................................................... 1
ARTICLE I Definitions and Other Provisions
of General Application........................................ 1
Section 1.1 Definitions............................................. 1
Section 1.2 Compliance Certificates and Opinions.................... 10
Section 1.3 Form of Documents Delivered to Trustee.................. 10
Section 1.4 Acts of Holders; Record Dates........................... 11
Section 1.5 Notices, Etc., to Trustee and Company................... 14
Section 1.6 Notice to Holders; Waiver............................... 14
Section 1.7 Conflict with Trust Indenture Act....................... 15
Section 1.8 Effect of Headings and Table of Contents................ 15
Section 1.9 Successors and Assigns.................................. 15
Section 1.10 Separability Clause..................................... 15
Section 1.11 Benefits of Indenture................................... 15
Section 1.12 Governing Law........................................... 15
Section 1.13 Legal Holidays.......................................... 16
ARTICLE II Security Forms................................................ 16
Section 2.1 Forms Generally......................................... 16
Section 2.2 Form of Face of Registered Security..................... 17
Section 2.3 Form of Reverse of Registered Security.................. 18
Section 2.4 Form of Legend for Global Securities.................... 25
Section 2.5 Form of Trustee's Certificate of
Authentication.......................................... 26
ARTICLE III The Securities................................................ 26
Section 3.1 Amount Unlimited; Issuable in Series.................... 26
Section 3.2 Denominations........................................... 29
Section 3.3 Execution, Authentication, Delivery and
Dating.................................................. 29
Section 3.4 Temporary Securities.................................... 31
Section 3.5 Registration, Registration of Transfer
and Exchange............................................ 31
Section 3.6 Mutilated, Destroyed, Lost and Stolen
Securities.............................................. 33
Section 3.7 Payment of Interest; Interest Rights
Preserved............................................... 34
Section 3.8 Persons Deemed Owners................................... 36
Section 3.9 Cancellation............................................ 36
Section 3.10 Computation of Interest................................. 36
*NOTE: This table of contents shall not, for any purpose, be deemed
to be a
part of the Indenture.
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ARTICLE IV Satisfaction and Discharge.................................... 36
Section 4.1 Satisfaction and Discharge of Indenture................. 36
Section 4.2 Application of Trust Money.............................. 38
ARTICLE V Remedies...................................................... 38
Section 5.1 Events of Default....................................... 38
Section 5.2 Acceleration of Maturity; Rescission and
Annulment............................................... 40
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.................................. 41
Section 5.4 Trustee May File Proofs of Claim........................ 42
Section 5.5 Trustee May Enforce Claims Without
Possession of Securities or Coupons.................... 42
Section 5.6 Application of Money Collected.......................... 43
Section 5.7 Limitation on Suits..................................... 43
Section 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest and to
Convert................................................. 44
Section 5.9 Restoration of Rights and Remedies...................... 44
Section 5.10 Rights and Remedies Cumulative.......................... 44
Section 5.11 Delay or Omission Not Waiver............................ 45
Section 5.12 Control by Holders...................................... 45
Section 5.13 Waiver of Past Defaults................................. 45
Section 5.14 Undertaking for Costs................................... 46
Section 5.15 Waiver of Usury, Stay or Extension Laws................. 46
ARTICLE VI The Trustee................................................... 46
Section 6.1 Certain Duties and Responsibilities..................... 46
Section 6.2 Notice of Defaults...................................... 47
Section 6.3 Certain Rights of Trustee............................... 47
Section 6.4 Not Responsible for Recitals or Issuance
of Securities........................................... 47
Section 6.5 May Hold Securities..................................... 48
Section 6.6 Money Held in Trust..................................... 48
Section 6.7 Compensation and Reimbursement.......................... 49
Section 6.8 Disqualification; Conflicting Interests................. 49
Section 6.9 Corporate Trustee Required; Eligibility................. 49
Section 6.10 Resignation and Removal; Appointment of
Successor............................................... 49
Section 6.11 Acceptance of Appointment by Successor.................. 51
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business.................................. 53
Section 6.13 Preferential Collection of Claims Against
Company................................................. 53
Section 6.14 Appointment of Authenticating Agent..................... 53
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ARTICLE VII Holders' Lists and Reports by Trustee and
Company....................................................... 55
Section 7.1 Company to Furnish Trustee Names and
Addresses of Holders.................................... 55
Section 7.2 Preservation of Information;
Communications to Holders............................... 55
Section 7.3 Reports by Trustee...................................... 56
Section 7.4 Reports by Company...................................... 56
ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or
Lease......................................................... 56
Section 8.1 Company May Consolidate, Etc., Only on
Certain Terms........................................... 56
ARTICLE IX Supplemental Indentures....................................... 58
Section 9.1 Supplemental Indentures Without Consent
of Holders.............................................. 58
Section 9.2 Supplemental Indentures with Consent of
Holders................................................. 59
Section 9.3 Execution of Supplemental Indentures.................... 60
Section 9.4 Effect of Supplemental Indentures....................... 61
Section 9.5 Conformity with Trust Indenture Act..................... 61
Section 9.6 Reference in Securities to Supplemental
Indentures.............................................. 61
ARTICLE X Covenants..................................................... 61
Section 10.1 Payment of Principal, Premiums and
Interest................................................ 61
Section 10.2 Maintenance of Office or Agency......................... 62
Section 10.3 Money for Securities Payments to Be Held
in Trust................................................ 62
Section 10.4 Statement by Officers as to Default..................... 63
Section 10.5 Existence............................................... 63
Section 10.6 Maintenance of Properties............................... 64
Section 10.7 Payment of Taxes and Other Claims....................... 64
Section 10.8 Waiver of Certain Covenants............................. 68
ARTICLE XI Redemption of Securities...................................... 68
Section 11.1 Applicability of Article................................ 68
Section 11.2 Election to Redeem; Notice to Trustee................... 69
Section 11.3 Selection by Trustee of Securities to be
Redeemed................................................ 69
Section 11.4 Notice of Redemption.................................... 70
Section 11.5 Deposit of Redemption Price............................. 71
Section 11.6 Securities Payable on Redemption Date................... 71
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Section 11.7 Securities Redeemed in Part............................. 71
Section 11.8 Purchase of Securities.................................. 72
ARTICLE XII Sinking Funds................................................. 72
Section 12.1 Applicability of Article................................ 72
Section 12.2 Satisfaction of Sinking Fund Payments
with Securities......................................... 72
Section 12.3 Redemption of Securities for Sinking
Fund.................................................... 73
ARTICLE XIII Defeasance and Covenant Defeasance............................ 73
Section 13.1 Company's Option to Effect Defeasance or
Covenant Defeasance..................................... 73
Section 13.2 Defeasance and Discharge................................ 74
Section 13.3 Covenant Defeasance..................................... 74
Section 13.4 Conditions to Defeasance or Covenant
Defeasance.............................................. 75
Section 13.5 Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions................................ 77
Section 13.6 Reinstatement........................................... 77
ARTICLE XIV Conversion of Securities...................................... 78
Section 14.1 Applicability; Conversion Privilege and
Conversion Price........................................ 78
Section 14.2 Exercise of Conversion Privilege........................ 79
Section 14.3 Fractions of Shares..................................... 80
Section 14.4 Adjustment of Conversion Price.......................... 80
Section 14.5 Notice of Adjustments of Conversion
Price................................................... 84
Section 14.6 Notice of Certain Corporate Action...................... 84
Section 14.7 Company to Reserve Common Stock......................... 85
Section 14.8 Taxes on Conversions.................................... 85
Section 14.9 Covenant as to Common Stock............................. 86
Section 14.10 Cancellation of Converted Securities.................... 86
Section 14.11 Provisions in Case of Consolidation,
Merger or Sale of Assets................................ 86
Section 14.12 Responsibility of Trustee............................... 87
ARTICLE XV Subordination of Securities................................... 87
Section 15.1 Securities Subordinate to Senior
Indebtedness............................................ 87
Section 15.2 Payment Over of Proceeds Upon
Dissolution, Etc........................................ 88
Section 15.3 Prior Payment to Senior Indebtedness Upon
Acceleration of Securities.............................. 89
Section 15.4 No Payment When Senior Indebtedness in
Default................................................. 89
Section 15.5 Payment Permitted If No Default......................... 90
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Section 15.6 Subrogation to Rights of Holders of
Senior Indebtedness..................................... 90
Section 15.7 Provisions Solely to Define Relative
Rights.................................................. 91
Section 15.8 Trustee to Effectuate Subordination..................... 91
Section 15.9 No Waiver of Subordination Provisions................... 91
Section 15.10 Notice to Trustee....................................... 92
Section 15.11 Reliance on Judicial Order or Certificate
of Liquidating Agent.................................... 93
Section 15.12 Trustee Not Fiduciary for Holders of
Senior Indebtedness..................................... 93
Section 15.13 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's
Rights.................................................. 94
Section 15.14 Article Applicable to Paying Agents..................... 94
Section 15.15 Certain Conversions Deemed Payment...................... 94
Section 15.16 Trust Moneys Not Subordinated........................... 95
Exhibit A ........................................................ A-1
Exhibit B ........................................................ B-1
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INDENTURE, dated as of _____________, 199_, between Royal
Gold, Inc., a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company"), having its
principal office at 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000, and ______________________ a _________________________ duly
organized and existing under the laws of __________, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as in
this Indenture provided.
This Indenture is subject to the provisions of the Trust
Indenture Act and the rules and regulations of the Commission
promulgated thereunder that are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the
equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1 Definitions.
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For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such
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accounting principles as are generally accepted at the date of such
computation;
(d) the words "Article" and "Section" refer to an Article
and Section, respectively, of this Indenture; and
(e) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms used principally in Articles VI, X and XIII are
defined in those Articles.
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under which
any Person is at the time liable and at any date as of which the
amount thereof is to be determined, the total net amount of rent
required to be paid by such Person under such lease during the
remaining primary term thereof, discounted from the respective due
dates thereof to such date at the rate of 10 1/8% per annum. The net
amount of rent required to be paid under any such lease for any such
period shall be the aggregate amount of rent payable by the lessee
with respect to such period after excluding amounts required to be
paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges, and after giving
appropriate credit for lease payments payable to such Person by any
sublessee. In the case of any lease which is terminable by the lessee
upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but no rent shall be considered as required to
be paid under such lease subsequent to the first date upon which it
may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language
or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in the place in
connection with which the term is used or in the financial community
of such place. Where successive publications are required to be made
in Authorized Newspapers, the successive publications may be made in
the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established
pursuant to Section 2.1 which is payable to bearer, including, without
limitation, unless the context otherwise indicates, a Security in
temporary or permanent global bearer form.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
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"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are
authorized or obligated by law or executive order to close.
"Capital Stock," as applied to the stock of any corporation,
means the capital stock of every class whether now or hereafter
authorized, regardless of whether such capital stock shall be limited
to a fixed sum or percentage with respect to the rights of the holders
thereof to participate in dividends and in the distribution of assets
upon the voluntary or involuntary liquidation, dissolution or winding
up of such corporation.
"Commission" means the Securities and Exchange Commission, from
time to time constituted, created under the Exchange Act or, if at any
time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Stock" includes any stock of any class of the Company
which has no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution
or winding-up of the Company and which is not subject to redemption by
the Company. However, subject to the provisions of Section 3.1(q) and
(r) and Section 14.11, shares issuable on conversion of Securities
shall include only shares of the class designated as Common Stock of
the Company at the date of this instrument or shares of any class or
classes resulting from any reclassification or reclassifications
thereof and which have no preference in respect of dividends or of
amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which are
not subject to redemption by the Company; provided that if at any time
there shall be more than one such resulting class, the shares of each
such class then so issuable shall be substantially in the proportion
which the total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person.
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"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the
Board, either of its Co-Chairmen of the Board, its Vice Chairman of
the Board, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items)
after deducting therefrom (i) all liabilities other than deferred
income taxes, liabilities resulting from any charge in connection with
the adoption of Statement of Financial Accounting Standards (SFAS) 106
"Employers' Accounting for Postretirement Benefits Other Than
Pensions," and Funded Debt and (ii) all goodwill, trade names,
trademarks, patents, organization expenses and other like intangibles,
all as set forth on the most recent balance sheet of the Company and
its consolidated Subsidiaries and computed in accordance with
generally accepted accounting principles. Mine development costs and
other similar assets shall be not considered to be intangibles for
this purpose.
"Corporate Trust Office" means the principal office of the
Trustee in _______________________________________ at which at any
particular time its corporate trust business shall be administered.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Covenant Defeasance" has the meaning specified in Section 13.3.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Defeasance" has the meaning specified in Section 13.2.
"Defeasible Series" has the meaning specified in Section 13.1.
"Depositary" means, with respect to the Securities of any series
issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated
in Section 3.1.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any statute successor thereto.
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"Funded Debt" means (i) all indebtedness for money borrowed
having a maturity of more than 12 months from the date as of which the
determination is made or having a maturity of 12 months or less but by
its terms being renewable or extendable beyond 12 months from such
date at the option of the borrower and (ii) rental obligations payable
more than 12 months from such date under leases which are capitalized
in accordance with generally accepted accounting principles (such
rental obligations to be included as Funded Debt at the amount so
capitalized and to be included for the purposes of the definition of
Consolidated Net Tangible Assets both as an asset and as Funded Debt
at the amount so capitalized).
"Global Security" means a Security that evidences all or part of
the Securities of any series and is authenticated and delivered to the
Depositary for such Securities or a nominee thereof. Global Securities
may be issued in either registered or bearer form and in either
temporary or permanent form. Permanent Global Securities will be
issued in definitive form.
"Holder", when used with respect to any Security, means in the
case of a Registered Security the Person in whose name the Security is
registered in the Security Register and in the case of a Bearer
Security the bearer thereof and, when used with respect to any coupon,
means the bearer thereof.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument, and
any such supplemental indenture, the provisions of the Trust Indenture
Act that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively. The term "Indenture" shall
also include the terms of particular series of Securities established
as contemplated in Section 3.1.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such
Security.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified
in Section 5.1(d).
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, either of its Co-Chairmen of the Board, a Vice
Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and
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delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 10.4 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities and coupons appertaining thereto, if any; provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 13.2; and
(4) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; provided,
however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or
waiver hereunder, (A) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable
as of the date of such determination upon acceleration of the
Maturity thereof to such date pursuant to Section 5.2, (B) the
principal amount of a Security denominated in one or more foreign
currencies or currency units
-6-
shall be the U.S. dollar equivalent, determined in the manner
provided as contemplated by Section 3.1 on the date of original
issuance of such Security, of the principal amount (or, in the
case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of
the amount determined as provided in Clause (A) above) of such
Security, and (C) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of
any series, means the place or places where the principal of and any
premium and interest on the Securities of that series are payable as
specified as contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.6
in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Principal Property" means any mine, mill, converting plant,
manufacturing plant, or other substantial facility owned at the date
hereof or hereafter acquired by the Company or any Restricted
Subsidiary of the Company which is located within the present 00
Xxxxxx xx xxx Xxxxxx Xxxxxx xx Xxxxxxx and the gross book value
(including related land and improvements thereon, any minerals or
mineral rights and all machinery and equipment included therein
without deduction of any depreciation reserves) of which on the date
as of which the determination is being made exceeds 2-1/2% of
Consolidated Net Tangible Assets, other than (i) any property which in
the opinion of the Board of Directors
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of the Company is not of material importance to the total business
conducted by the Company as an entirety or (ii) any portion of a
particular property which is similarly found not to be of material
importance to the use or operation of such property.
"Realty Subsidiary" means a Subsidiary of the Company engaged
primarily in the development and sale or financing of real property.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Registered Security" means any Security in the form established
pursuant to Article II which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified
for that purpose as contemplated by Section 3.1.
"Responsible Officer," when used with respect to the Trustee,
means the chairman or any co-chairman or vice-chairman of the board of
directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the chairman of the trust
committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other
officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means a Subsidiary of the Company (i)
substantially all the property of which is located, or substantially
all the business of which is carried on, within the present 00 Xxxxxx
xx xxx Xxxxxx Xxxxxx xx Xxxxxxx and (ii) which owns a Principal
Property, but does not include a Realty Subsidiary.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
["Senior Indebtedness" means the principal of (and premium, if
any) and interest on (a) all indebtedness of the Company (including
indebtedness of others guaranteed by the
-8-
Company) other than the Securities, which is (i) for money borrowed or
(ii) evidenced by a note or similar instrument given in connection
with the acquisition of any businesses, properties or assets of any
kind, (b) obligations of the Company as lessee under leases required
to be capitalized on the balance sheet of the lessee under generally
accepted accounting principles and (c) amendments, renewals,
extensions, modifications and refundings of any such indebtedness or
obligation, in any such case whether outstanding on the date of this
Indenture or thereafter created, incurred or assumed, unless in any
case in the instrument creating or evidencing any such indebtedness or
obligation or pursuant to which the same is outstanding it is provided
that such indebtedness or obligation is not superior in right of
payment to the Securities or it is provided that such obligation is
subordinated to senior indebtedness to substantially the same extent
as the Securities are subordinated to Senior Indebtedness.]
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of
such Security or such installment of principal or interest is due and
payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company
or by one or more other Subsidiaries, or by the Company and one or
more other Subsidiaries. For the purposes of this definition, "voting
stock" means stock which ordinarily has voting power for the election
of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series
shall mean each Trustee with respect to Securities of that series.
-9-
"U.S. Government Obligations" has the meaning specified in
Section 13.4.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice
president."
Section 1.2 Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company
shall furnish to the Trustee such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to
be given by an officer of the Company, or an Opinion of Counsel, if to
be given by counsel, and shall comply with the requirements of the
Trust Indenture Act and any other requirements set forth in this
Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including
certificates provided for in Section 10.4) shall include
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give
an opinion with respect to some matters and
-10-
one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any
such certificate or opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or any
subsidiary of the Company stating that the information with respect to
such factual matters is in the possession of the Company or any
subsidiary of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give, or execute two
or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need
not, be consolidated and form one instrument.
Section 1.4 Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him
the execution thereof. Where such execution is by a signer acting in
a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
The fact and date
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of the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee
to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary or exhibited to it, the
Bearer Securities therein described; or such facts may be proved by
the certificate of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory.
The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate bearing a
later date issued in respect of the same Bearer Security is produced,
(2) such Bearer Security is produced to the Trustee by some other
Person, (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may
also be proved in any other manner which the Trustee deems sufficient.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
The Company may, in the circumstances permitted by the Trust
Indenture Act, set any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series
entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given or taken by Holders of
Securities of such series. With regard to any record date set
pursuant to this paragraph, the Holders of Outstanding Securities of
the relevant series on such record date (or their duly appointed
agents), and only such Persons, shall be entitled to give or take the
relevant action, whether or not such Holders remain Holders after such
record date. With regard to any action that may be given or taken
hereunder only by Holders of a requisite principal amount of
Outstanding Securities of any series (or their duly appointed agents)
and for which a record date is set pursuant to this paragraph, the
Company may, at its option, set an expiration date after which no such
action purported to be given or taken by any Holder shall be effective
hereunder unless given or taken on or prior to such expiration date by
Holders of the requisite principal amount of Outstanding Securities of
such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this paragraph, the
Company may, on one or more occasions at its option, extend such date
to any later date. Nothing in this paragraph shall prevent any Holder
(or any duly appointed agent thereof) from giving or taking, after any
such expiration date, any action identical to, or, at any time,
contrary to or different from, the action or purported action to which
such expiration date relates, in which event the Company may set a
record date in respect thereof pursuant to this paragraph. Nothing in
this paragraph shall be construed to render ineffective any action
taken at any time by the Holders (or their duly appointed agents) of
the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is so taken. Notwithstanding
the foregoing or the Trust Indenture Act, the Company shall not set a
record date for, and the provisions of this paragraph shall not apply
with
-12-
respect to, any notice, declaration or direction referred to in the
next paragraph.
Upon receipt by the Trustee from any Holder of Securities of a
particular series of (i) any written notice of default or breach
referred to in Section 5.1(d) or 5.1(e) with respect to Securities of
such series, if such default or breach has occurred and is continuing
and the Trustee shall not have given such written notice to the
Company, (ii) any declaration of acceleration referred to in Section
5.2, if an Event of Default with respect to Securities of such series
has occurred and is continuing and the Trustee shall not have given
such a declaration to the Company, or (iii) any direction referred to
in Section 5.12 with respect to Securities of such series, if the
Trustee shall not have taken the action specified in such direction,
then a record date shall automatically and without any action by the
Company or the Trustee be set for determining the Holders of
Outstanding Securities of such series entitled to join in such notice,
declaration or direction, which record date shall be the close of
business on the tenth day following the day on which the Trustee
receives such notice, declaration or direction. Promptly after such
receipt by the Trustee, and in any case not later than the fifth day
thereafter, the Trustee shall notify the Company and the Holders of
Outstanding Securities of such series of any such record date so
fixed. The Holders of Outstanding Securities of such series on such
record date (or their duly appointed agents), and only such Persons,
shall be entitled to join in such notice, declaration or direction,
whether or not such Holders remain Holders after such record date;
provided that, unless such notice, declaration or direction shall have
become effective by virtue of Holders of the requisite principal
amount of Outstanding Securities of such series on such record date
(or their duly appointed agents) having joined therein on or prior to
the 90th day after such record date, such notice, declaration or
direction shall automatically and without any action by any Person be
cancelled and of no further effect. Nothing in this paragraph shall
be construed to prevent a Holder (or a duly appointed agent thereof)
from giving, before or after the expiration of such 90-day period, a
notice, declaration or direction contrary to or different from, or,
after the expiration of such period, identical to, the notice,
declaration or direction to which such record date relates, in which
event a new record date in respect thereof shall be set pursuant to
this paragraph. Nothing in this paragraph shall be construed to
render ineffective any notice, declaration or direction of the type
referred to in this paragraph given at any time to the Trustee and the
Company by Holders (or their duly appointed agents) of the requisite
principal amount of Outstanding Securities of the relevant series on
the date such notice, declaration or direction is so given.
Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of
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the principal amount of such Security or by one or more duly appointed
agents each of which may do so pursuant to such appointment with
regard to all or any different part of such principal amount.
Section 1.5 Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: ____________________, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company.
Section 1.6 Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein
expressly provided) (i) to Holders of Registered Securities if in
writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders, and (ii) to Holders of Bearer
Securities if published in an Authorized Newspaper in the City of New
York and London or other capital city in Western Europe and in such
other city or cities as may be specified in such Bearer Securities on
a Business Day at least twice, the first such publication to be not
earlier than the earliest date (if any), and not later than the latest
date (if any), prescribed for the giving of such notice. Where is
Indenture provides for notice in any manner, such notice may be waived
in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such
notice to Holders of Registered Securities by mail, then such
notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. In
any case in which notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder of a Registered
Security, shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein.
In case by reason of the suspension of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer
Securities as provided above, then such notification to Holders of
Bearer Securities as shall be made with the approval of the Trustee
for such Securities shall constitute sufficient notice to such Holders
for every purpose hereunder.
-14-
Neither the failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such waiver.
Section 1.7 Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act
to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
Section 1.8 Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 1.11 Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and
their successors hereunder[, the holders of Senior Indebtedness] and
the Holders, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 1.12 Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, BUT
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
-15-
Section 1.13 Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security or the last date on which a Holder has
the right to convert his Securities shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities, other than a provision of the
Securities of any series which specifically states that such provision
shall apply in lieu of this Section) payment of interest or principal
(and premium, if any) or conversion of the Securities need not be made
at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date,
or at the Stated Maturity, or on such last day for conversion,
provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE II
Security Forms
Section 2.1 Forms Generally.
---------------
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons appertaining
thereto shall be in substantially the form set forth in this Article,
or in such other form as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture,
and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities and coupons appertaining thereto, if any, as evidenced by
their execution of the Securities and coupons appertaining thereto, if
any. If temporary Securities of any series are issued in global form
as permitted by Section 3.4, the form thereof shall be established as
provided in the preceding sentence. If the form of Securities of any
series and coupons appertaining thereto, if any, is established by
action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 3.3
for the authentication and delivery of such Securities (or any such
temporary global security) and coupons appertaining thereto, if any.
Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities shall have interest coupons appertaining thereto
attached.
The definitive Securities and coupons appertaining thereto, if
any, shall be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as determined by
the officers executing such Securities, as evidenced by their
execution of such Securities.
-16-
Section 2.2 Form of Face of Registered Security.
-----------------------------------
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
ROYAL GOLD, INC.
________________________________________
No. _________ $____________
Royal Gold, Inc., a corporation duly organized and existing under
the laws of Delaware (herein called the "Company," which term includes
any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ___________________________,
or registered assigns, the principal sum of _______________________
Dollars on ________________________________________ [if the Security
is to bear -------------------------- interest prior to Maturity,
insert -- , and to pay interest thereon from ------------------------
or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on ____________ and
____________ in each year, commencing _________, at the rate of ____%
per annum, until the principal hereof is paid or made available for
payment [if applicable, insert -- --------------------- , and at the
rate of ____% per annum on any overdue principal and premium and on
any overdue installment of interest]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, which shall be the _______ or _______ (whether or not a
Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days
prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more
fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity,
insert --
-----------------------------------------------------------------.
The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the overdue
principal of this Security shall bear interest at the rate of ____%
per annum which shall accrue from
-17-
the date of such default in payment to the date payment of such
principal has been made or duly provided for. Interest on any overdue
principal shall be payable on demand. Any such interest on any
overdue principal that is not so paid on demand shall bear interest at
the rate of ______% per annum which shall accrue from the date of such
demand for payment to the date payment of such interest has been made
or duly provided for, and such interest shall also be payable on
demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert any such] interest on this Security will be made
at the office or agency of the Company maintained for that purpose in
____________, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert -- ; provided, however, that at
the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated: ______________
ROYAL GOLD, INC.
By ----------------------------
Attest:
----------------------------
Section 2.3 Form of Reverse of Registered Security.
--------------------------------------
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued
in one or more series under an Indenture, dated as of _____________,
199_ (herein called the "Indenture"),
-18-
between the Company and ___________________, as Trustee (herein called
the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the
Company, the Trustee, the holders of Senior Indebtedness and the
Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [if applicable, insert --,
--------------------- limited in aggregate principal amount to
$___________].
[If applicable, insert -- Subject to and upon compliance with the
provisions of the Indenture, the Holder of this Security is entitled,
at his option, at any time on or before the close of business on
____________, or in case this Security or a portion hereof is called
for redemption, then in respect of this Security or such portion
hereof until and including, but (unless the Company defaults in making
the payment due upon redemption) not after, the close of business on
the 10th calendar day before the Redemption Date, to convert this
Security (or any portion of the principal amount hereof which is
$1,000 or an integral multiple thereof), at the principal amount
hereof, or of such portion, into fully paid and non-assessable shares
(calculated as to each conversion to the nearest 1/100 of a share) of
Common Stock of the Company at a conversion price per share of Common
Stock equal to $_____ per each share of Common Stock (or at the
current adjusted conversion price if an adjustment has been made as
provided in the Indenture) by surrender of this Security, duly
endorsed or assigned to the Company or in blank, to the Company at its
office or agency in _______________, accompanied by written notice to
the Company that the Holder hereof elects to convert this Security, or
if less than the entire principal amount hereof is to be converted,
the portion hereof to be converted, and, in case such surrender shall
be made during the period from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date (unless this Security or the
portion thereof being converted has been called for redemption on a
Redemption Date within such period), also accompanied by payment in
__________ Clearing House or other funds acceptable to the Company of
an amount equal to the interest payable on such Interest Payment Date
on the principal amount of this Security then being converted.
Subject to the aforesaid requirement for payment and, in the case of a
conversion after the Regular Record Date next preceding any Interest
Payment Date and on or before such Interest Payment Date, to the right
of the Holder of this Security (or any Predecessor Security) of record
at such Regular Record Date to receive an installment of interest
(with certain exceptions provided in the Indenture), no payment or
adjustment is to be made on conversion for interest accrued hereon or
for dividends on the Common Stock issued on conversion. No fractions
of shares or scrip representing fractions of shares will be issued on
-19-
conversion, but instead of any fractional interest the Company shall
pay a cash adjustment as provided in the Indenture. The conversion
price is subject to adjustment as provided in the Indenture. In
addition, the Indenture provides that in case of certain
consolidations or mergers to which the Company is a party or the
transfer of substantially all of the assets of the Company, the
Indenture shall be amended, without the consent of any Holders of
Securities, so that this Security, if then outstanding, will be
convertible thereafter, during the period this Security shall be
convertible as specified above, only into the kind and amount of
securities, cash and other property receivable upon the consolidation,
merger or transfer by a holder of the number of shares of Common Stock
into which this Security might have been converted immediately prior
to such consolidation, merger or transfer (assuming such holder of
Common Stock failed to exercise any rights of election and received
per share the kind and amount received per share by a plurality of
non-electing shares).]
[If applicable, insert -- The Securities are not otherwise
subject to redemption prior to maturity and no sinking fund is
provided for the Securities.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, [if
applicable, insert -- (1) on ____________ in any year commencing with
the year ______ and ending with the year ______ through operation of
the sinking fund for this series at a Redemption Price equal to 100%
of the principal amount, and (2)] at any time [if -- applicable,
insert -- on or after __________, 19__], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed [if applicable,
insert -- on or before ________________, __%, and if redeemed] during
the 12-month period beginning ______________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to _____% of the principal
amount, together in the case of any such redemption [if applicable,
insert -- (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to
-20-
such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, (1)
on ____________ in any year commencing with the year ____ and ending
with the year ____ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of
the sinking fund (expressed as percentages of the principal amount)
set forth in the table below, and (2) at any time [if -- applicable,
insert -- on or after ____________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If
redeemed during the 12-month period beginning ____________ of the
years indicated,
Redemption Price For Redemption Price For
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Year Sinking Fund of the Sinking Fund
------ -------------------- -----------------------
and thereafter at a Redemption Price equal to _____% of the principal
amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the
Company may not, prior to _____________, redeem any Securities of this
series as contemplated by (if applicable, insert -- Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in
accordance with generally accepted financial practice) of less than
_____% per annum.]
[If applicable, insert -- The sinking fund for this series
provides for the redemption on ____________ in each year beginning
with the year _______ and ending with the year ______
-21-
of [if applicable, insert -- not less than $__________ ("mandatory
sinking fund") and not more than] $_________ aggregate principal
amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if
applicable, insert -- mandatory] sinking fund payments [if applicable,
insert -- and Securities surrendered for conversion] may be credited
against subsequent [if applicable, insert -- mandatory] sinking fund
payments otherwise required to be made [if applicable, insert -- in
the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert --
In the event of redemption or conversion of this Security in part
only, a new Security or Securities of this series and of like tenor
for the unredeemed or unconverted portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, [i] subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness [and
(ii) pari passu with all other Subordinated Indebtedness], and this
Security is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Security, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take action as may be
necessary or appropriate to effectuate the subordination so provided
and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [(1) the entire indebtedness of this
Security or (2)] certain restrictive covenants and Events of Default
with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities
of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert
-- If an Event of Default with respect to Securities of this series
shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture. Such amount
shall be equal to --insert formula for determining the amount. Upon
payment (i) of the amount of principal so declared due and payable and
(ii) of interest on any overdue principal and overdue interest all of
the Company's obligations in respect of the payment of the principal
-22-
of and interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of
a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon
this Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such
Holder shall have previously given the Trustee written notice of a
continuing Event of Default with respect to the Securities of this
series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable
indemnity and the Trustee shall not have received from the Holders of
a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed
herein.
[Subject to the rights of holders of Senior Indebtedness, as set
forth in the Indenture, no] [No] other reference herein to the
Indenture and no other provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed or to convert this Security as
provided in the Indenture.
-23-
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any
place where the principal of and any premium and interest on this
Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of [$1,000] and any integral
multiple thereof. as provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of
this series and of like tenor of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered
as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
[If applicable, insert --
[FORM OF CONVERSION NOTICE]
To: ROYAL GOLD, INC.
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof
(which is $1,000 or an integral multiple thereof) below designated,
into shares of Common Stock of Royal Gold, Inc. in accordance with the
terms of the Indenture referred to in this Security, and directs that
the shares issuable and deliverable upon the conversion, together with
any check in payment for fractional shares and any Securities,
-24-
representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has
been indicated below. If shares are to be issued in the name of a
person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto. Any amount required to
be paid by the undersigned on account of interest accompanies this
Security.
Dated:
Fill in for registration of
shares of Common Stock and
Securities if to be issued
otherwise than to the
registered holder.
Principal Amount to be converted (in an
integral multiple of $1,000, if less
than all): $
------------------------------
Name
------------------------------
Address
----------------------------
----------------------
(Please print name and Signature
address, including zip code
number)
SOCIAL SECURITY OR OTHER
TAXPAYER IDENTIFYING
NUMBER
[SIGNATURE GUARANTEED --required only if
Common Stock and Securities are to be issued
and delivered to other than registered
holder]
Section 2.4 Form of Legend for Global Securities.
------------------------------------
Every Global Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be transferred
to, or
-25-
registered or exchanged for Securities registered in the name of, any
Person other than the Depositary or a nominee thereof and no such
transfer may be registered, except in the limited circumstances
described in the Indenture. Every Security authenticated and
delivered upon registration of transfer of, or in exchange for or in
lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances.
Section 2.5 Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
--------------------------------
As Trustee
By
Authorized Signatory
ARTICLE III
The Securities
Section 3.1 Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution and, subject to
Section 3.3, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any
series,
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(b) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 3.4, 3.5,
3.6, 9.6 or 11.7
-26-
and except for any Securities which, pursuant to Section 3.3, are
deemed never to have been authenticated and delivered hereunder);
(c) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form or otherwise, with or without
coupons appertaining thereto and, if so, whether beneficial owners of
interests in any such permanent Global Security may exchange such
interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in
Section 3.5, and the Depositary for any Global Security or Securities;
(d) the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature and the extent to which,
or the manner in which, any interest payable on a temporary Global
Security on any Interest Payment Date will be paid if other than in
the manner provided in Section 3.5;
(e) the date or dates on which the principal of the
Securities of the series is payable;
(f) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any interest
payable on any Interest Payment Date;
(g) the place or places where the principal of and any
premium and interest on Securities of the series shall be payable;
(h) the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company;
(i) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(j) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(k) the currency, currencies or currency units in which
payments of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the currency
of the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in Section 1.1;
(l) if the amount of payments of principal of or any
premium or interest on any Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined;
-27-
(m) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to
be payable, the currency, currencies or currency units in which
payment of the principal of and any premium and interest on Securities
of such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such
election is to be made;
(n) 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 5.2;
(o) the applicability, nonapplicability, or variation, of
Article X with respect to the Securities of such series;
(p) if applicable, that the Securities of the series shall
be subject to either or both of Defeasance or Covenant Defeasance as
provided in Article XIII; provided that no series of Securities that
is convertible into Common Stock as provided in Article XIV or
convertible into or exchangeable for any other securities pursuant to
Section 3.1(r) shall be subject to Defeasance pursuant to Section
13.2;
(q) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the Depositary or Depositaries
for such Global Security or Global Securities and any circumstances
other than those set forth in Section 3.5 in which any such Global
Security may be transferred to, and registered and exchanged for
Securities registered in the name of, a Person other than the
Depositary for such Global Security or a nominee thereof and in which
any such transfer may be registered;
(r) the terms and conditions, if any, pursuant to which the
Securities are convertible into Common Stock of the Company pursuant
to Article XIV, and any variation thereof;
(s) the terms and conditions, if any, pursuant to which the
Securities are convertible into or exchangeable for any other
securities; and
(t) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1(e)).
-28-
All Securities of any one series and the coupons
appertaining to any Bearer Securities of such series shall be
substantially identical except as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred
to above and (subject to Section 3.3) set forth, or determined in the
manner provided, in the Officers' Certificate referred to above or in
any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of
the series.
Section 3.2 Denominations.
-------------
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 3.1. In
the absence of any such specified denomination with respect to the
Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, either of its Co-Chairmen of the Board, its
Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Coupons shall bear the facsimile signature of the Chairman of the
Board, President, Treasurer or any Vice President of the Company.
Securities and coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper
officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not hold
such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
Series, together with any coupons appertaining thereto, executed by
the Company to the Trustee for authentication, together with a Company
Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and
deliver such Securities as in this Indenture provided and not
otherwise; provided, however, that, in connection with its sale,
during the "restricted period" (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no
Bearer Security shall be mailed or otherwise delivered to any location
in the United States; and provided, further, that a Bearer Security
may (other than a temporary Global Security in bearer form delivered
as provided in Section 3.5) be delivered outside the United States in
connection with its original issuance and only if the Person entitled
to receive such Bearer Security shall have furnished a certificate in
the form set forth in Exhibit A to this Indenture, or in such other
form of certificate as shall contain information then required by
federal income tax laws and, if applicable, federal securities laws,
dated no earlier than the Certification Date. If any Security shall be
presented by a permanent global Bearer Security, then, for purposes of
this Section and Section 3.5, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon
-29-
exchange of a portion of a temporary Global Security shall be deemed
to be delivery in connection with sale, during the "restricted period"
(as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States
Treasury Regulations) of such beneficial owner's interest in such
permanent Global Security. Except as permitted by Section 3.6, the
Trustee shall not authenticate and deliver any Bearer Security unless
all appurtenant coupons for interest then matured have been detached
and cancelled. If the form or terms of the Securities of the series
have been established in or pursuant to one or more Board Resolutions
as permitted by Sections 2.1 and 3.1, 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
-29-
(subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating,
(a) if the form of such Securities has been established by
or pursuant to Board Resolution as permitted by Section 2.1, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 3.1, that
such terms have been established in conformity with the provisions of
this Indenture; and
(c) that such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles. If such form or terms have been so
established, the Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the
preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver
the Officers' Certificate otherwise required pursuant to Section 3.1
or the Company Order and Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of
authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of
the first Security of such series to be issued.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date
of issuance of the first Bearer Security of such series to be issued.
No Security or coupons appertaining thereto shall be entitled to
any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security, or the Security to
which such coupon appertains, a certificate of authentication
substantially in the form provided for herein executed by the Trustee
by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued
-30-
and sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 3.9, for all
purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
Section 3.4 Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons appertaining
thereto or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of any series issuable as
Bearer Securities, such temporary Securities may be in global form. A
temporary Bearer Security shall be delivered only in compliance with
the conditions set forth in Section 3.3.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
Until so exchanged the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as
definitive Securities of such series and tenor; provided however that
no Bearer Security shall be issued in exchange for a temporary
Registered Security; and provided, further, that a definitive Bearer
Security (including interests in a permanent Global Security) shall be
delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 3.3.
Any temporary global Bearer Security and any permanent global
Bearer Security shall, unless otherwise provided therein, be delivered
to the London office of a depositary or common depositary (the "Common
Depositary") for the benefit of [Euroclear and CEDEL S.A.] for credit
to the respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary global Bearer Security of a series (the "Exchange Date"),
the Company shall deliver to the Trustee definitive Securities of that
series in aggregate principal amount equal to the principal amount of
such temporary global Bearer Security, executed by the Company. On or
after the Exchange Date such temporary global Bearer Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities of that series without charge and
the Trustee shall authenticate and deliver, in exchange for each
portion of such temporary global Bearer Security, a like aggregate
principal amount of definitive Securities of the same series of
-30-
authorized denominations and of like tenor as the portion of such
temporary global Bearer Security to be exchanged; provided however,
that unless otherwise specified in such temporary global Bearer
Security, no such definitive Securities shall be delivered unless,
upon such presentation by the Common Depositary, such temporary global
Bearer Security is accompanied by a certificate dated the Exchange
Date or a subsequent date and signed by [Euroclear] as to the portion
of such temporary global Bearer Security held for its account then to
be exchanged and a certificate dated the Exchange Date or a subsequent
date and signed by [CEDEL S.A.] as to the portion of such temporary
global Bearer Security held for its account then to be exchanged, each
in the form set forth in Exhibit B to this Indenture. The definitive
Securities to be delivered in exchange for any such temporary global
Bearer Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 3.1, and
if any combination thereof is so specified, as requested by the
beneficial owner thereof.
Unless otherwise specified in the temporary global Bearer
Security, the interest of a beneficial owner of Securities of a series
in a temporary global Bearer Security shall be exchanged on or after
the Exchange Date for definitive Securities (and where the form of the
definitive Securities is not specified by the Holder for an interest
in a permanent Global Security) of the same series and of like tenor
upon delivery by such beneficial owner to [Euroclear or CEDEL S.A.],
as the case may be, of a certificate in the form set forth in Exhibit
A to this Indenture dated no earlier than the Certification Date,
copies of which certificate shall be available from the offices of
[Euroclear and CEDEL S.A.], the Trustee, any Authenticating Agent
appointed for such series of Securities and each Paying Agent. Unless
otherwise specified in such temporary global Bearer Security, any
exchange shall be made free of charge to the beneficial owners of such
temporary global Bearer Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not
take delivery of such definitive Securities in person at the office of
[Euroclear or CEDEL S.A.]. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Bearer
Security shall be delivered only outside the United States.
All Outstanding temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.1, interest payable on a
temporary global Bearer Security on an Interest Payment Date for
Securities of such series shall be payable to [Euroclear and CEDEL
S.A.] on such Interest Payment Date upon delivery by [Euroclear and
CEDEL S.A.] to the Trustee of a certificate or certificates in the
form set forth in Exhibit B to this Indenture, for credit without
further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of
such temporary global Bearer Security on such Interest Payment Date
and who have each delivered to [Euroclear or CEDEL S.A.], as the case
may be a certificate in the form set forth in Exhibit A to this
indenture. Any interest so received by [Euroclear and CEDEL S.A.] and
not paid as herein provided shall be returned to the Trustee
immediately prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company in accordance with
Section 10.3.
Section 3.5 Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and
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in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of
Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein
provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment
for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series,
of any authorized denominations and of a like aggregate principal
amount and tenor.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series,
of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Registered Securities to be
exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. A Holder of Registered Securities
cannot have Bearer Securities issued in exchange for such Registered
Securities.
At the option of the Holder of Bearer Securities of any series,
such Bearer Securities may be exchanged for Registered Securities of
the same series of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in
default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount
equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of
which such a payment shall have been made such Holder shall be
entitled to receive from the Company the amount of such payment;
provided, however, that, except as otherwise provided in Section 10.2,
interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency
located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such office
or agency in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i)
any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment,
as the case may be, and interest or Defaulted Interest, as the case
may be, will not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security but will be
payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to
receive.
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All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Registered represented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may
be imposed in connection with any registration of transfer or exchange
of Securities, other than exchanges pursuant to Section 3.4, 9.6 or
11.7 not involving any transfer.
The Company shall not be required (1) to issue, register the
transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series
selected for redemption under Section 11.3 and ending at the close of
business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice
of redemption and (B) if Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant
notice of redemption, except that if Securities of the series are also
issuable as Registered Securities and there is no publication, the
mailing of relevant notice of redemption, or (2) to register the
transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part or (3) to exchange any Bearer Security
so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor,
provided that such Registered Security shall be simultaneously
surrendered for redemption.
Notwithstanding any other provision in this Indenture, no
registered Global Security may be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other
than the Depositary for such registered Global Security or any nominee
thereof, and no such transfer may be registered, unless (1) such
Depositary (A) notifies the Company that it is unwilling or
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unable to continue as Depositary for such registered Global Security
or (B) ceases to be a clearing agency registered under the Exchange
Act, (2) the Company executes and delivers to the Trustee a Company
Order that such registered Global Security shall be so transferable,
registrable and exchangeable, and such transfers shall be registrable,
(3) there shall have occurred and be continuing an Event of Default
with respect to the Securities evidenced by such registered Global
Security or (4) there shall exist such other circumstances, if any, as
have been specified for this purpose as contemplated by Section 3.1.
Notwithstanding any other provision in this Indenture, a registered
Global Security to which the restriction set forth in the preceding
sentence shall have ceased to apply may be transferred only to, and
may be registered and exchanged for Registered Securities registered
only in the name or names of, such Person or Persons as the Depositary
for such registered Global Security shall have directed and no
transfer thereof other than such a transfer may be registered.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a registered Global
Security to which the restriction set forth in the first sentence of
the preceding paragraph shall apply, whether pursuant to this Section,
Section 3.4, 3.6, 9.6 or 11.7 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a registered Global Security.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously
outstanding with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of
any Security or coupon appertaining thereto and (ii) such security or
indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen
Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security;
provided, however, that the principal of and any premium and interest
on Bearer Securities shall, except as otherwise provided in Section
10.2, be payable only at an office or agency located outside the
United States.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient
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to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen
Security or in exchange for a Security to which a destroyed, lost or
stolen coupon appertains shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security and its coupons, if any, of the destroyed,
lost or stolen coupons shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons.
Section 3.7 Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 3.1 with
respect to any series of Registered Securities, interest on any
Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest. Interest on any Bearer Security which
is payable, and is punctually paid or duly provided for, on any
Interest Payment date shall be paid to the bearer of the applicable
coupon appertaining to such Bearer Security. Unless otherwise provided
with respect to the Securities of any series, payment of interest may
be made at the option of the Company (i) in the case of Registered
Securities, by check mailed or delivered to the address of any Person
entitled thereto as such address shall appear in the Security
Register, or (ii) in the case of Bearer Securities, except as
otherwise provided in Section 10.2, upon presentation and surrender of
the appropriate coupon appertaining thereto at an office or agency of
the Company in a Place of Payment located outside the United States or
by transfer to an account maintained by the payee with a bank located
outside the United States.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as
provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause
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provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date, therefor to be
mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted Interest
on the Registered Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Subject to the provisions of Section 14.2, in the case of any
Registered Security which is converted after any Regular Record Date
and on or prior to the next succeeding Interest Payment Date, interest
whose Stated Maturity is on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such conversion,
and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Registered
Security (or one or more Predecessor Securities) is registered at the
close of business on such Regular Record Date. Except as otherwise
expressly provided in the immediately preceding sentence in the case
of any Registered Security which is converted, interest whose Stated
Maturity is after the date of conversion of such Security shall not be
payable.
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Section 3.8 Persons Deemed Owners.
---------------------
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered
Security for the purpose of receiving payment of principal of and any
premium and (subject to Section 3.7) any interest on such Registered
Security and for all other purposes whatsoever, whether or not such
Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Section 3.9 Cancellation.
------------
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or conversion or for credit
against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. All Registered Securities and matured
coupons so delivered shall be promptly cancelled by the Trustee. All
Bearer Securities and unmatured coupons so delivered shall be held by
the Trustee and, upon instruction by a Company Order, shall be
cancelled or held for reissuance. Bearer Securities and unmatured
coupons held for reissuance may be reissued only in replacement of
mutilated, lost, stolen or destroyed Bearer Securities of the same
series and like tenor or the related coupons pursuant to Section 3.6.
All Bearer Securities and unmatured coupons held by the Trustee
pending such cancellation of reissuance shall be deemed to be
delivered to the Trustee for all purposes of this Indenture and the
Securities. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and
all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a
Company Order.
In the case of any temporary global Bearer Security, which
shall be disposed of if the entire aggregate principal amount of the
Securities represented thereby has been exchanged, the certificate of
disposition shall state that all certificates required pursuant to
Section 3.4 hereof, substantially in the form of Exhibit B hereto, to
be given by [Euroclear or CEDEL S.A.], have been duly presented to the
Trustee for such Securities by [Euroclear or CEDEL S.A.] as the case
may be. Permanent Global Securities shall not be disposed of until
exchanged in full for definitive Securities or until payment thereon
is made in full.
Section 3.10 Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day
months.
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ARTICLE IV
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of conversion, registration
of transfer or exchange of Securities herein expressly provided for),
and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining
thereto (other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has been waived as
provided in Section 3.5, (ii) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6, (iii) coupons appertaining to Bearer
Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in
Section 11.6, and (iv) Securities and coupons for whose payment money
has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation (i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or (iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company, and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities and coupons appertaining
thereto, if any, not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date
of such deposit (in the case of Securities and coupons appertaining
thereto, if any, which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.7, the
obligations of the Trustee to any Authenticating Agent under Section
6.14 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of Clause (a) of this Section, the obligations of the
Trustee under Section 4.2 and the last paragraph of Section 10.3 shall
survive.
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Section 4.2 Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held
in trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for
whose payment such money has been deposited with the Trustee. All
moneys deposited with the Trustee pursuant to Section 4.1 (and held by
it or any Paying Agent) for the payment of Securities and coupons
appertaining thereto, if any, subsequently converted shall be returned
to the Company upon Company Request.
ARTICLE V
Remedies
Section 5.1 Events of Default.
-----------------
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article XV or 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):
(a) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(c) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of
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at least 10% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(e) the Company shall fail to pay any Indebtedness in
excess of [$5,000,000] owing by the Company, or any interest or
premium thereon, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Indebtedness, or the Company
shall fail to perform any term, covenant or agreement on its part to
be performed under any agreement or instrument evidencing or securing
or relating to any such Indebtedness, if the effect of such failure in
either case is that the maturity of such Indebtedness is duly
accelerated (for this purpose "Indebtedness" shall have the same
meaning as the term "Funded Debt" but the term Indebtedness shall
apply irrespective of the maturity of such indebtedness or obligation)
(the Trustee shall not be deemed to have knowledge of a default under
this subsection (e) unless it shall have actual knowledge thereof);
provided, however, that, subject to the provisions of Sections 6.1 and
6.2, the Trustee shall not be deemed to have knowledge of such failure
to pay unless either (A) a Responsible Officer of the Trustee shall
have actual knowledge of such failure to pay or (B) the Trustee shall
have received written notice thereof from the Company, from any
Holder, from the holder of any such Indebtedness or from the trustee
thereunder; or
(f) 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 60 consecutive
days; or
(g) 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
-39-
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 other similar official
of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company
in furtherance of any such action; or
(h) any other Event of Default provided with respect to
Securities of that series.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every
such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series may declare the
principal amount (or, if any of the Securities of that series are
Original Issue Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof) of
all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Securities and coupons
appertaining thereto, if any, of that series,
(B) the principal of (and premium, if any, on) any
Securities and coupons appertaining thereto, if any, of that series
which have become due
-40-
otherwise than by such declaration of acceleration and any interest
thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates prescribed
therefor in such Securities and coupons appertaining thereto, if any,
and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(b) all Events of Default with respect to Securities and
coupons appertaining thereto, if any, of that series, other than the
non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
---------------------------------------------------------------
The Company covenants that if
(a) default is made in the payment of any interest on any
Security and coupons appertaining thereto, if any, when such interest
becomes due and payable and such default continues for a period of 30
days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, the Company
will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and
payable on such Securities and coupons for principal and any premium
and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium and
on any overdue interest, at the rate or rates prescribed therefor in
such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of
Securities and any related coupons of such series by such
-41-
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any
other proper remedy.
Section 5.4 Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors,
the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under
the Trust Indenture Act in order to have claims of the Holders and the
Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding; provided, however, that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditor's or
other similar committee.
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities or Coupons.
-----------------------------------------------
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Securities
or coupons in respect of which such judgment has been recovered.
-42-
Section 5.6 Application of Money Collected.
------------------------------
[Subject to Article XV, any] [Any] money collected by the Trustee
pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or any premium or
interest, upon presentation of the Securities or coupons and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7; and
SECOND: To the payment of the amounts then due and unpaid
for principal of and any premium and interest on the
Securities and coupons in respect of which or for the
benefit of which such money has been collected,
ratably,without preference or priority of any kind,
according to the amounts due and payable on such Securities
and coupons for principal and any premium and interest,
respectively.
Section 5.7 Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
nstitute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
series;
-43-
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or to
seek to obtain priority or preference over any other of such Holders
or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert.
---------------------------------------------------
Notwithstanding any other provision in this Indenture, [but
subject to Article XV,] the Holder of any Security or coupon shall
have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section
3.7) interest on such Security or such coupon on the respective Stated
Maturities expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to convert such Security or
coupon in accordance with Article XIV and to institute suit for the
enforcement of any such payment and right to convert, and such rights
shall not be impaired without the consent of such Holder.
Section 5.9 Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and
in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or
coupons in the last paragraph of Section 3.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other
appropriate right or remedy.
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Section 5.11 Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Securities or coupons to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
Section 5.12 Control by Holders.
------------------
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
on the Trustee, with respect to the Securities of such series,
provided that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture, and
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 5.13 Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a
default
(a) in the payment of the principal of or any premium or
interest on any Security of such series, or
(b) in respect of a covenant or provision hereof which
under Article IX cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent
thereon.
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Section 5.14 Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, a court may require any
party litigant in such suit to file an undertaking to pay the costs of
such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act;
provided that neither this Section nor the Trust Indenture Act shall
be deemed to authorize any court to require such an undertaking or to
make such an assessment in any suit instituted by the Company or in
any suit for the enforcement of the right to convert any Security in
accordance with Article XIV.
Section 5.15 Waiver of Usury, Stay or Extension Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VI
The Trustee
Section 6.1 Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing,
no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or
not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this
Section.
-46-
Section 6.2 Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of
any series, the Trustee shall give the Holders of Securities of such
series notice of such default as and to the extent provided by the
Trust Indenture Act; provided, however, that in the case of any
default of the character specified in Section 5.1(d) with respect to
Securities of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose
of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 6.3 Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
-47-
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 6.4 Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee or any Authenticating Agent shall not
be accountable for the use or application by the Company of Securities
or the proceeds thereof.
Section 6.5 May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.6 Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
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Section 6.7 Compensation and Reimbursement.
------------------------------
The Company agrees
(a) to pay to the Trustee from time to time reasonable
compensation 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) except as otherwise expressly provided herein, to
promptly reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
Section 6.8 Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture.
Section 6.9 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be one or more Trustees hereunder with
respect to the Securities of each series, at least one of which shall
be a Person that is eligible pursuant to the Trust Indenture Act to
act as such and has a combined capital and surplus of at least
$50,000,000 and its Corporate Trust Office in
______________________________. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
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Section 6.10 Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company.
If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series.
The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section
6.9 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any
such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section
5.14, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the
-50-
Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be
only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section
6.11. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in
the manner required by Section 6.11, any Holder who has been a bona
fide Holder of a Security of such series for at least six months may,
on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series
in the manner provided in Section 1.6. Each notice shall include the
name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
--------------------------------------
In the case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
-51-
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) and (b) of this
Section, as the case may be.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
-52-
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business.
---------------------------------------------------
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
Section 6.13 Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall
be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
Section 6.14 Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents
with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange,
registration of transfer, partial conversion or partial redemption
thereof or pursuant to Section 3.6, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at
all times be a corporation organized and doing business under the laws
of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority.
If such Authenticating Agent publishes reports of condition at least
-53-
annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee
may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall mail written notice
of such appointment by first class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear
in the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for such
payments, subject to the provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
-54-
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
-------------------------------------------
As Trustee
By: ---------------------------------
As Authenticating Agent
By: ----------------------------------
Authorized Officer
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of
Holders.
-------------------------------------------------
The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list for each series of Securities, in such form as the
Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of the Regular Record Date, as
the case may be, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished; excluding from any
such list names and addresses received by the Trustee in its capacity
as Security Registrar.
Section 7.2 Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in
Section 7.1 and the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar.
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The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
The rights of the Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust Indenture
Act.
Section 7.3 Reports by Trustee.
------------------
The Trustee shall transmit to Holders of Registered
Securities, as the names and addresses of such Holders appear in the
Security Register and to such Holders of Securities as have, within
the two years preceding such transmissions, filed their names and
addresses with the Trustee for that purpose, such reports concerning
the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
Section 7.4 Reports by Company.
------------------
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 shall be filed with
the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and the
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Company shall not permit any Person to consolidate with or merge into
the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(a) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed
by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety
shall be a corporation, partnership or trust, shall be organized and
validly existing and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium and interest on all the Securities and
the performance or observance of every covenant of this Indenture on
the part of the Company to be performed or observed and shall have
provided for conversion rights in accordance with Section 14.11;
(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company
or any Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing;
(c) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the
Company would become subject to a mortgage, pledge, lien, security
interest or other encumbrance which would not be permitted by this
Indenture, the Company or such successor Person, as the case may be,
shall take such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) all indebtedness
secured thereby; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
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Section 8.2 Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety
in accordance with Section 8.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities and
coupons.
ARTICLE IX
Supplemental Indentures
Section 9.1 Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities and any coupons
appertaining thereto (and if such covenants are to be for the benefit
of less than all series of Securities and any coupons appertaining
thereto, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(c) to add any additional Events of Default; or
(d) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form
(e) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities,
provided that any such addition,
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change or elimination (A) shall neither (i) apply to any Security and
coupons appertaining thereto, if any, of any series created prior to
the execution of such supplemental indenture and entitled to the
benefit of such provision nor (ii) modify the rights of the Holder of
any such Security and coupons appertaining thereto, if any, with
respect to such provision or (B) shall become effective only when
there is no such Security or coupons appertaining thereto,
Outstanding; or
(f) to secure the Securities and coupons appertaining
thereto, if any, pursuant to the requirements of Article X or
otherwise; or
(g) to establish the form or terms of Securities and
coupons appertaining thereto, if any, of any series as permitted by
Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11; or
(i) to make provision with respect to the conversion rights
of Holders pursuant to the requirements of Article XIV; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this Clause (j) shall not adversely affect the
interests of the Holders of Securities and coupons appertaining
thereto, if any, of any series in any material respect.
Section 9.2 Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected
by such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provision to or
changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of
Securities and coupons appertaining thereto, if any, of such series
under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of
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interest thereon or any premium payable upon the redemption thereof,
or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or
change any Place of Payment where, or the coin or currency in which,
any Security or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or adversely affect the right to
convert any Security as provided in Article XIV, [or modify the
provisions of this Indenture with respect to the subordination of the
Securities in a manner adverse to the Holders,] or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(c) modify any of the provisions of this Section, Section
5.13 or Section 10.8, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, provided, however, that this
Clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section and Section 10.8, or the deletion of this
proviso, in accordance with the requirements of Sections 6.11 and
9.1(h). A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 9.3 Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this
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Indenture, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for
all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act.
Section 9.6 Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities and coupons appertaining
thereto, if any, of such series.
ARTICLE X
Covenants
Section 10.1 Payment of Principal, Premiums and Interest.
-------------------------------------------
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the
principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities any coupons
appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 3.1 with respect to any series of Securities,
any interest due on and payable with respect to Bearer Securities on
or before Maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments, as
are evidenced thereby as they severally mature.
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Section 10.2 Maintenance of Office or Agency.
-------------------------------
If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities
of that series may be surrendered for registration of transfer or
exchange, where securities may be surrendered for conversion and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company
will maintain (A) in The Borough of Manhattan, the City of New York,
an office or agency where any Registered Securities of that series may
be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for
exchange for Registered Securities, where notices and demands to or
upon the Company in respect of the Securities of that series and this
Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not
otherwise), (B) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series which is located outside the
United States, an office or agency where Bearer Securities of that
series and related coupons may be presented and surrendered for
payment; provided, however, that if the Securities of that series are
listed on the International Stock Exchange of the United Kingdom and
the Republic of Ireland Limited, the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent
for the Securities of that series in London, Luxembourg or any other
required city located outside the United States, as the case may be,
so long as the Securities of that series are listed on such exchange,
and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange and where notices and demands
to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series
and the related coupons may be presented and surrendered for payment
at the office of any Paying Agent for such series located outside the
United States, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and
demands.
No payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States
or by transfer to an account maintained with a bank located in the
United States, nor shall any payments be made in respect of Bearer
Securities or coupons appertaining thereto pursuant to the
presentation to the Company or its designated Paying Agents within the
United States; provided, however, that, if the Securities of a series
are denominated and payable in Dollars, payment of principal of and
any premium and interest on any Bearer Security shall be made at the
office of the Company's Paying Agent in The Borough of Manhattan, The
City of New York, if (but only if) payment in Dollars of the full
amount of such principal, premium or interest, as the case may be, at
all offices or agencies outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar
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restrictions. The Company may also from time to time designate one or
more other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 10.3 Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities and coupons appertaining
thereto, if any,it will, on or before each due date of the principal
of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and
interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents
for any series of Securities and coupons appertaining thereto, if any,
it will, prior to each due date of the principal of or any premium or
interest on any Securities of that series, deposit with a Paying Agent
a sum sufficient to pay such amount, such sum to be held as provided
by the Trust Indenture Act, and(unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying
Agent will (1) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (2) during the continuance of
any default by the Company (or any other obligor upon the Securities
of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such
Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to
the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect
to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of
or any premium or interest on any Security of any series and remaining
unclaimed for two years after such principal, premium or interest has
become due or payable shall be paid to the Company on Company Request,
or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security and coupons appertaining thereto, if
any, shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to
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be published once, in an Authorized Newspaper published in the English
language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will
be repaid to the Company.
Section 10.4 Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
Section 10.5 Existence.
---------
Subject to Article VIII, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve
any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
Section 10.6 Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith may
be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties
if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
Section 10.7 Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits, or property of
the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however,
that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
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Section 10.8 Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in Sections 10.6 and
10.7, with respect to the Securities of any series if before the time
for such compliance the Holders of at least a majority in principal
amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but
no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE XI
Redemption of Securities
Section 11.1 Applicability of Article.
------------------------
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 3.1
for Securities of any series) in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall
be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of less than all the Securities of any series,
the Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal
amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere
in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 11.3 Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series and of a
specified tenor are to be redeemed), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series
of a denomination larger than the minimum authorized denomination for
Securities of that series. If less than all of the Securities of such
series and of a specified tenor are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
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If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the
portion of the Security so selected, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected
for redemption. Securities which have been converted during a
selection of Securities to be redeemed shall be treated by the Trustee
as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of
such Securities which has been or is to be redeemed.
Section 11.4 Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided
in Section 1.6 mailed not less than 30 nor more than 60 days prior to
the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed,
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(e) in the case of any Securities that are convertible
pursuant to Article XIV, the conversion price or rate, the date on
which the right to convert the principal of the Securities to be
redeemed will terminate and the place or places where such Securities
may be surrendered for conversion,
(f) the place or places where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto,
are to be surrendered for payment of the Redemption Price,
(g) that the redemption is for a sinking fund, if such is
the case,
(h) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons appertaining thereto maturing subsequent to
the date fixed for redemption or the amount of any such missing coupon
or coupons will be deducted from the Redemption Price, or security or
indemnity satisfactory to the Company, the Trustee and any Paying
Agent is furnished, and
(i) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not be redeemed, and
if such Bearer Securities may be exchanged for Registered Securities
not subject to redemption on such Redemption Date pursuant to Section
3.5 or otherwise, the last date, as determined by the Company, on
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which such exchanges may be made. A notice of redemption as
contemplated by Section 1.6 need not identify particular Registered
Securities to be redeemed. Notice of redemption of Securities to be
redeemed at the election of the Company shall be given by the
Company or, at the Company's request, by the Trustee in the name and
at the expense of the Company and shall be irrevocable.
Section 11.5 Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in
Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be
redeemed on that date other than any Securities called for redemption
on that date which have been converted prior to the date of such
deposit.
If any Security called for redemption is converted, any
money deposited with the Trustee or with any Paying Agent or so
segregated and held in trust for the redemption of such Security shall
(subject to any right of the Holder of such Security or any
Predecessor Security to receive interest as provided in the last
paragraph of Section 3.7) be paid to the Company upon Company Request
or, if then held by the Company, shall be discharged from such trust.
Section 11.6 Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and
after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Securities shall cease
to bear interest and the coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided
below, shall be redeemed. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons
appertaining thereto, if any, maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided,
however, that, unless
-------- otherwise specified as contemplated by Section 3.1,
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or
one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 3.7 and, provided further, that all payments on
Bearer Securities shall be made only in the manner provided in Section
10.2 for payments on Bearer Securities.
If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons appertaining thereto
maturing after the Redemption Date, such Security may be paid after
deducting from the Redemption Price an amount equal to the face amount
of all such missing coupons appertaining thereto, or the surrender of
such missing coupon or coupons appertaining thereto may be waived by
the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount
so deducted; provided, however, that interest represented by coupons
appertaining thereto shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
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Section 10.2) and, unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those coupons
appertaining thereto.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
Section 11.7 Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without
service charge, a new Registered Security or Securities of the same
series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so
surrendered.
Section 11.8. Purchase of Securities.
----------------------
Unless otherwise specified as contemplated by Section 3.1,
the Company and any Affiliate of the Company may at any time purchase
or otherwise acquire Securities or coupons appertaining thereto in the
open market or by private agreement; provided that purchases or other
acquisitions of Bearer Securities or coupons appertaining thereto by
the Company or any Affiliate of the Company may be made only outside
the United States, and payments therefor may be made only upon
surrender of such Bearer Securities or coupons appertaining thereto at
a location outside the United States and only in the manner provided
for payments on Bearer Securities in Section 10.2. Such acquisition
shall not operate as or be deemed for any purpose to be a redemption
of the indebtedness represented by such Securities or coupons
appertaining thereto. Any Securities or coupons appertaining thereto
purchased or acquired by the Company may be delivered to the Trustee
and, upon such delivery, the indebtedness represented thereby shall be
deemed to be satisfied. Section 3.9 shall apply to all Securities and
coupons so delivered.
ARTICLE XII
Sinking Funds
Section 12.1 Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as
otherwise specified as contemplated by Section 3.1 for Securities of
such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such
minimum amount provided for by the terms of Securities of any series
is herein referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any series, the cash amount
of any sinking fund payment may be subject to reduction as provided in
Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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Section 12.2 Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption), together in
the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto, and (2) may apply as a credit Securities
of a series which have been converted pursuant to Article XIV or which
have been redeemed either at the election of the Company pursuant to
the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 12.3 Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the
Trustee an Officers' Certificate specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of
that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner
specified in Section 11.3 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1 Company's Option to Effect Defeasance or Covenant
Defeasance.
--------------------------------------------------
The Company may elect, at its option by Board Resolution at any
time, to have either Section 13.2 or Section 13.3 applied to the
Outstanding Securities of any series designated pursuant to Section
3.1 as being defeasible pursuant to this Article XIII (hereinafter
called a "Defeasible Series"), upon compliance with the conditions set
forth below in this Article XIII; provided that Section 13.2 shall not
apply to any series of Securities that is convertible into Common
Stock as provided in Article XIV or convertible into or exchangeable
for any other securities pursuant to Section 3.1(r).
Section 13.2 Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section
13.1 to have this Section 13.2 applied to the Outstanding Securities
of any Defeasible Series and subject to the proviso to Section 13.1,
the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series
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as provided in this Section on and after the date the conditions set
forth in Section 13.4 are satisfied (hereinafter called "Defeasance").
For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Securities of such series and to have satisfied all
its other obligations under the Securities of such series and this
Indenture insofar as the Securities of such series are concerned (and
the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which
shall survive until otherwise terminated or discharged hereunder: (1)
the right of Holders of Securities of such series to receive, solely
from the trust fund described in Section 13.4 and as more fully set
forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities of such series when payments
are due, (2) the Company's obligations with respect to the Securities
of such series under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder
and (4) this Article XIII. Subject to compliance with this Article
XIII, the Company may exercise its option provided in Section 13.1 to
have this Section 13.2 applied to the Outstanding Securities of any
Defeasible Series notwithstanding the prior exercise of its option
provided in Section 13.1 to have Section 13.3 applied to the
Outstanding Securities of such series.
Section 13.3 Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in
Section 13.1 to have this Section 13.3 applied to the Outstanding
Securities of any Defeasible Series, (1) the Company shall be released
from its obligations under Sections 10.5 through 10.9, inclusive, and
Section 8.1, and (2) the occurrence of any event specified in Sections
5.1(c), 5.1(d) (with respect to any of Sections 10.5 through 10.9,
inclusive, and Section 8.1), 5.1(e) and 5.1(h) shall be deemed not to
be or result in an Event of Default, in each case with respect to the
Outstanding Securities of such series as provided in this Section on
and after the date the conditions set forth in Section 13.4 are
satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 5.1(d)), whether
directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder
of this Indenture and the Securities of such series shall be
unaffected thereby.
Section 13.4 Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either
Section 13.2 or Section 13.3 to the Outstanding Securities of any
Defeasible Series:
(a) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee that satisfies
the requirements contemplated by Section 6.9 and agrees to comply with
the provisions of this Article XIII applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of Outstanding Securities of such series, (A)
money in an amount, or (B) U.S. Government Obligations that through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
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in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and
any premium and interest on the Securities of such series on the
respective Stated Maturities, in accordance with the terms of this
Indenture and the Securities of such series. As used herein, "U.S.
Government Obligation" means (x) any security that is (i) a direct
obligation of the United States of America for the payment of which
full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended)
as custodian with respect to any U.S. Government Obligation specified
in Clause (x) and held by such custodian for the account of the holder
of such depositary receipt, or with respect to any specific payment of
principal of or interest on any such U.S. Government Obligation,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder
of such depositary receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific payment
of principal or interest evidenced by such depositary receipt.
(b) In the case of an election under Section 13.2, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
date first set forth hereinabove, there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to the
effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not
recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to
the Securities of such series and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as
would be the case if such deposit, Defeasance and discharge were not
to occur.
(c) In the case of an election under Section 13.3, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Outstanding Securities of such
series will not recognize gain or loss for Federal income tax purposes
as a result of the deposit and Covenant Defeasance to be effected with
respect to the Securities of such series and will be subject to
Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such
series, if then listed on any securities exchange, will not be
delisted as a result of such deposit.
(e) No Event of Default or event that (after notice or
lapse of time or both) would become an Event of Default shall have
occurred and be continuing at the time of such deposit or, with regard
to any Event of Default or any such event specified in Sections 5.1(f)
and (g), at any time on or prior to the 90th day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until after such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not cause
the Trustee to have a conflicting interest within the meaning of the
Trust Indenture Act (assuming all Securities are in default within the
meaning of such Act).
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(g) Such Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(h) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
(i) Such Defeasance or Covenant Defeasance shall not result
in the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act of 1940, as
amended, unless such trust shall be qualified under such Act or exempt
from regulation thereunder.
Section 13.5 Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions.
-----------------------------------------------------
Subject to the provisions of the last paragraph of Section 10.3,
all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 13.6, the Trustee and
any such other trustee are referred to collectively as the "Trustee")
pursuant to Section 13.4 in respect of the Securities of any
Defeasible Series shall be held in trust and applied by the Trustee,
in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such
Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Holders of Securities of such
series, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust
need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 13.4 or the principal and
interest received in respect thereof other than any such tax, fee or
other charge that by law is for the account of the Holders of
Outstanding Securities.
Anything in this Article XIII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or U.S. Government Obligations held by
it as provided in Section 13.4 with respect to Securities of any
Defeasible Series that, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent
Defeasance or Covenant Defeasance with respect to the Securities of
such series.
Section 13.6 Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money
in accordance with this Article XIII with respect to the Securities of
any series by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture
and the Securities of such series shall be revived and reinstated as
though no deposit had occurred pursuant to this Article XIII with
respect to Securities of such series until such time as the Trustee or
Paying Agent is permitted to apply all money held in trust pursuant to
Section 13.5 with respect to Securities of such series in accordance
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with this Article XIII; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any Security
of such series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of Securities
of such Series to receive such payment from the money so held in
trust.
ARTICLE XIV
Conversion of Securities
Section 14.1 Applicability; Conversion Privilege and Conversion
Price.
--------------------------------------------------
Securities of any series which are convertible into Common Stock
of the Company shall be convertible in accordance with their terms and
(except as otherwise specified as contemplated by Section 3.1 for
Securities of any series) in accordance with this Article.
Subject to and upon compliance with the provisions of this
Article, at the option of the Holder thereof, any Security or any
portion of the outstanding principal amount thereof which is $1,000 or
an integral multiple of $1,000 may be converted at the principal
amount thereof, or of such portion thereof, into fully paid and
nonassessable shares (calculated as to each conversion to the nearest
1/100 of a share) of Common Stock of the Company at the conversion
price, determined as hereinafter provided, in effect at the time of
conversion. Such conversion right shall expire at the close of
business on the date specified for Securities of such series. In case
a Security or portion thereof is called for redemption at the election
of the Company, such conversion right in respect of the Security or
portion so called shall expire at the close of business on the 10th
calendar day before the Redemption Date, unless the Company defaults
in making the payment due upon redemption.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "conversion price") shall be the price
specified in relation to Securities of such series pursuant to Section
3.1. The conversion price shall be adjusted in certain instances as
provided in this Article.
Section 14.2 Exercise of Conversion Privilege.
--------------------------------
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed
or assigned to the Company or in blank, at any office or agency of the
Company maintained for that purpose pursuant to Section 10.2,
accompanied by written notice to the Company (which shall be
substantially in the form set forth in Section 2.3) at such office or
agency that the Holder elects to convert such Security or, if less
than the entire principal amount thereof is to be converted, the
portion thereof to be converted. Securities surrendered for
conversion during the period from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date shall (except in the case of
Securities or portions thereof which have been called for redemption
on a Redemption Date within such period) be accompanied by payment in
New York Clearing House funds or other funds acceptable to the Company
of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of Securities being surrendered for
conversion. Subject to the provisions of Section 3.7 relating to the
payment of Defaulted Interest by the Company, the interest payment
with respect to a Security called for redemption on a Redemption Date
during the period from the close of business on any Regular Record
Date next preceding any Interest Payment Date to the opening of
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business on such Interest Payment Date shall be payable on such
Interest Payment Date to the Holder of such Security at the close of
business on such Regular Record Date notwithstanding the conversion of
such Security after such Regular Record Date and prior to such
Interest Payment Date, and the Holder converting such Security need
not include a payment of such interest payment amount upon surrender
of such Security for conversion. Except as provided in the preceding
sentence and subject to the final paragraph of Section 3.7, no payment
or adjustment shall be made upon any conversion on account of any
interest accrued on the Securities surrendered for conversion or on
account of any dividends on the Common Stock issued upon conversion.
Securities shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such
Securities for conversion in accordance with the foregoing provisions,
and at such time the rights of the Holders of such Securities as
Holders shall cease, and the Person or Persons entitled to receive the
Common Stock issuable upon conversion shall be treated for all
purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the
Company shall issue and shall deliver at such office or agency a
certificate or certificates for the number of full shares of Common
Stock issuable upon conversion, together with payment in lieu of any
fraction of a share, as provided in Section 15.3.
In the case of any Security which is converted in part only, upon
such conversion the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the
Company, a new Security or Securities of authorized denominations in
aggregate principal amount equal to the unconverted portion of the
principal amount of such Security.
Section 14.3 Fractions of Shares.
-------------------
No fractional shares of Common Stock shall be issued upon
conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number
of full shares which shall be issuable upon conversion thereof shall
be computed on the basis of the aggregate principal amount of the
Securities (or specified portions thereof) so surrendered. Instead of
any fractional 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 in respect of such
fraction in an amount equal to the same fraction of the daily closing
price per share of Common Stock (consistent with Section 14.4(f)
below) at the close of business on the day of conversion.
Section 14.4 Adjustment of Conversion Price.
------------------------------
(a) In case the Company shall pay or make a dividend or
other distribution on any class of capital stock of the Company in
Common Stock, the conversion price in effect at the opening of
business on the day following the date fixed for determination of
stockholders entitled to receive such dividend or other distribution
shall be reduced by multiplying such conversion price by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or
other distribution, such reduction to become effective immediately
after the opening of business on the day following the date fixed for
such determination. For the purposes of this paragraph (a), the
number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Company but shall include
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shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company will not pay any
dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.
(b) In case the Company shall issue rights or warrants to
all holders of its Common Stock entitling them to subscribe for or
purchase shares of Common Stock at a price per share less than the
current market price per share (determined as provided in paragraph
(f) of this Section) of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights or
warrants (other than pursuant to a dividend reinvestment plan), the
conversion price in effect at the opening of business on the day
following the date fixed for such determination shall be reduced by
multiplying such conversion price by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination plus the number
of shares of Common Stock which the aggregate of the offering price of
the total number of shares of Common Stock so offered for subscription
or purchase would purchase at such current market price and the
denominator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination plus
the number of shares of Common Stock so offered for subscription or
purchase, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (b), the number of
shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions
of shares of Common Stock. The Company will not issue any rights or
warrants in respect of shares of Common Stock held in the treasury of
the Company.
(c) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
conversion price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately reduced, and, conversely, in case outstanding
shares of Common Stock shall each be combined into a smaller number of
shares of Common Stock, the conversion price in effect at the opening
of business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction
or increase, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness or assets (including securities, but excluding any rights
or warrants referred to in paragraph (b) of this Section, any dividend
or distribution paid in cash out of the earned surplus of the Company
and any dividend or distribution referred to in paragraph (a) of this
Section), the conversion price shall be adjusted so that the same
shall equal the price determined by multiplying the conversion price
in effect immediately prior to the close of business on the date fixed
for the determination of stockholders entitled to receive such
distribution by a fraction of which the numerator shall be the current
market price per share (determined as provided in paragraph (6) of
this Section) of the Common Stock on the date fixed for such
determination less the then fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and
described in a Board Resolution filed with the Trustee) of the portion
of the assets or evidences of indebtedness so distributed applicable
to one share of Common Stock and the denominator shall all be such
current market price per share of the Common Stock, such adjustment to
become effective immediately prior to the opening of business on the
day following the date fixed for the determination of stockholders
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entitled to receive such distribution. If after the Distribution Date
(the "Distribution Date"), as defined in the Rights Agreement, dated
as of February 23, 1989, between the Company and The Chase Manhattan
Bank, N.A., as in effect on the date hereof (the "Rights Agreement"),
converting Holders of the Securities are not entitled to receive the
Rights, as defined in the Rights Agreement, which would otherwise be
attributable (but for the date of conversion) to the shares of Common
Stock received upon such conversion, then adjustment of the conversion
price shall be made under the preceding sentence as if the Rights were
then being distributed to holders of the Company s Common Stock. If
such an adjustment is made and the Rights are later redeemed,
invalidated or terminated, then a corresponding reversing adjustment
shall be made to the conversion price, on an equitable basis, to take
account of such event. However, it is hereby agreed that the Company
may elect to amend the provisions presently applicable to the Rights
so that each share of Common Stock issuable upon conversion of the
Securities, whether or not issued after the Distribution Date for such
Rights, will be accompanied by the Rights which would otherwise be
attributable (but for the date of conversion) to such shares of Common
Stock, in which event the preceding two sentences will not apply.
(e) The reclassification of Common Stock into securities
other than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 14.11 applies) shall be
deemed to involve (A) a distribution of such securities other than
Common Stock to all holders of Common Stock (and the effective date of
such reclassification shall be deemed to be "the date fixed for the
determination of stockholders entitled to receive such distribution"
and the "date fixed for such determination" within the meaning of
paragraph (d) of this Section), and (B) a subdivision or combination,
as the case may be, of the number of shares of Common Stock
outstanding immediately prior to such reclassification into the number
of shares of Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be "the day
upon which such subdivision becomes effective" or "the day upon which
such combination becomes effective," as the case may be, such "the day
upon which such subdivision or combination becomes effective" within
the meaning of paragraph (c) of this Section).
(f) For the purpose of any computation under paragraphs (b)
and (d) of this Section, the current market price per share of Common
Stock on any day shall be deemed to be the average of the daily
closing prices for the five consecutive trading days (i.e., Business
Days on which the Common Stock is traded) selected by the Board of
Directors commencing not more than 20 trading days before, and ending
not later than, the earlier of the day in question and the day before
the "ex" date with respect to the issuance or distribution, requiring
such computation. For this purpose, the term "'ex' date," when used
with respect to any issuance or distribution, shall mean the first
date on which the Common Stock trades regular way on the applicable
exchange or in the applicable market without the right to receive such
issuance or distribution. The closing price for each day shall be the
reported last sale price regular way or, in case no such reported sale
takes place on such day, the average of the reported closing bid and
asked prices regular way, in either case on the New York Stock
Exchange or, if the Common Stock is not listed or admitted to trading
on such Exchange, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, on
the National Association of Securities Dealers Automated Quotations
National Market System or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted on
such National Market System, the average of the closing bid and asked
prices in the over-the-counter market as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of
Directors for that purpose.
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(g) The Company may make such reductions in the conversion
price, in addition to those required by paragraphs (a), (b), (c) and
(d) of this Section, as it considers to be advisable in order to avoid
or diminish any income tax to any holders of shares of Common Stock
resulting from any dividend or distribution of stock or issuance of
rights or warrants to purchase or subscribe for stock or from any
event treated as such for income tax purposes or for any other
reasons. The Company shall have the power to resolve any ambiguity or
correct any error in this paragraph (g) and its actions in so doing
shall be final and conclusive.
(h) No adjustment in the conversion price shall be required
unless such adjustment would require an increase or decrease of at
least one percent in such conversion price; provided, however, that
any adjustments which by reason of this paragraph (h) is not required
to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article shall be
made to the nearest cent or to the nearest 1/100 of a share, as the
case may be.
Section 14.5 Notice of Adjustments of Conversion Price.
-----------------------------------------
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion price
in accordance with Section 14.4 and shall prepare a certificate signed
by the Treasurer of the Company setting forth the adjusted conversion
price and showing in reasonable detail the facts upon which such
adjustment is based, and such certificate shall forthwith be filed at
each office or agency maintained for the purpose of conversion of
Securities pursuant to Section 10.2; and
(b) a notice stating that the conversion price has been
adjusted and setting forth the adjusted conversion price shall
forthwith be required, and as soon as practicable after it is
required, such notice shall be mailed by the Company to all Holders at
their last addresses as they shall appear in the Security Register.
Section 14.6 Notice of Certain Corporate Action.
----------------------------------
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out
of its earned surplus; or
(b) the Company shall authorize the granting to the holders
of its Common Stock of rights or warrants to subscribe for or purchase
any shares of capital stock of any class or of any other rights; or
(c) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its outstanding
shares of Common Stock), or of any consolidation, merger or share
exchange to which the Company is a party and for which approval of any
stockholders of the Company is required, or of the sale or transfer of
all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company then the Company shall cause
to be filed at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 10.2, and shall cause to
be mailed to all Holders at their last addresses as they shall appear
in the Security Register, at least 20 days (or 10 days in any case
specified in clause (a) or (b) above) prior to the applicable record
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or effective date hereinafter specified, a notice stating (x) the date
on which a record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights or warrants are to be
determined, or (y) the date on which such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale,
transfer, dissolution, liquidation or winding up. Neither the failure
to give such notice nor any defect therein shall affect the legality
or validity of the proceedings described in Clauses (a) through (d) of
this Section 14.6. If at the time the Trustee shall not be the
conversion agent, a copy of such notice shall also forthwith be filed
by the Company with the Trustee.
Not less than seven days prior to the Distribution Date (as
defined in Section 14.4(d)), the Company shall cause to be filed at
each office or agency maintained for the purpose of conversion of
Securities pursuant to Section 10.2, and shall cause to be mailed to
all Holders at their last addresses as they shall appear in the
Security Register, a notice stating the date on which the Distribution
Date is to occur, and briefly describing the import thereof. Neither
the failure to give such notice nor any defect therein shall affect
the legality or validity of the proceedings described in the Rights
Agreement (as defined in Section 14.4(d)). If at the time the Trustee
shall not be the conversion agent, a copy of such notice shall also
forthwith be filed by the Company with the Trustee.
Section 14.7 Company to Reserve Common Stock.
-------------------------------
The Company shall at all times reserve and keep available out of
its authorized but unissued Common Stock, for the purpose of effecting
the conversion of Securities, the full number of shares of Common
Stock then issuable upon the conversion of all Outstanding Securities.
Section 14.8 Taxes on Conversions.
--------------------
The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on
conversion of Securities pursuant hereto. The Company shall not,
however, be required to pay any tax which may be payable in respect of
any transfer involved in the issue and delivery of shares of Common
Stock in a name other than that of the Holder of the Security or
Securities to be converted, and no such issue or delivery shall be
made unless and until the Person requesting such issue has paid to the
Company the amount of any such tax, or has established to the
satisfaction of the Company that such tax has been paid.
Section 14.9 Covenant as to Common Stock.
---------------------------
The Company covenants that all shares of Common Stock which may
be issued upon conversion of Securities will upon issue be fully paid
and nonassessable and, except as provided in Section 15.8, the Company
will pay all taxes, liens and charges with respect to the issue
thereof.
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Section 14.10 Cancellation of Converted Securities.
------------------------------------
All Securities delivered for conversion shall be delivered to
the Trustee to be cancelled by or at the direction of the Trustee,
which shall dispose of the same as provided in Section 3.9.
Section 14.11 Provisions in Case of Consolidation, Merger or Sale of
Assets.
-------------------------------------------------------
In case of any consolidation of the Company with, or merger of
the Company into, any other Person, any merger of another Person into
the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock of the Company) or any sale or transfer of all
or substantially all of the assets of the Company, the Person formed
by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each
convertible Security then outstanding shall have the right thereafter,
during the period such Security shall be convertible as specified in
Section 14.1, to convert such Security only into the kind and amount
of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by a holder of the number of
shares of Common Stock of the Company into which such Security might
have been converted immediately prior to such consolidation, merger,
sale or transfer, assuming such holder of Common Stock of the Company
failed to exercise his rights of election, if any, as to the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer (provided that if the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer is not the same for each share
of Common Stock of the Company in respect of which such rights of
election shall not have been exercised ("non-electing share"), then
for the purpose of this Section the kind and amount of securities,
cash and other property receivable upon such consolidation, merger,
sale or transfer by each non-electing share shall be deemed to be the
kind and amount so receivable per share by a plurality of the
non-electing shares). Such supplemental indenture shall provide for
adjustments which, for events subsequent to the effective date of such
supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The
above provisions of this Section shall similarly apply to successive
consolidations, mergers, sales or transfers.
Section 14.12 Responsibility of Trustee.
-------------------------
Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any Holder of Securities to
determine whether any fact exists which may require any adjustment of
the conversion price, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee nor any conversion agent shall
be accountable with respect to the registration, validity or value (or
the kind or amount) of any shares of Common Stock, or of any
securities or property, which may at any time be issued or delivered
upon the conversion of any Security; and neither the Trustee nor any
conversion agent makes any representation with respect thereto.
Neither the Trustee nor any conversion agent shall be responsible for
any failure of the Company to issue or transfer or deliver any Common
Stock or stock certificates or other securities or property or to make
any cash payment upon the surrender of any Security for the purpose of
conversion or to comply with any of the covenants of the Company
contained in this Article XIV.
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[Article XV to be used only for Subordinated Debt Securities]
ARTICLE XV
Subordination of Securities
Section 15.1 Securities Subordinate to Senior Indebtedness.
---------------------------------------------
The Company covenants and agrees, and each Holder of a Security
or coupon, by his acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this
Article, the indebtedness represented by the Securities and the
payment of the principal of (and premium, if any) and interest on each
and all of the Securities and the payment of any coupon are hereby
expressly made subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness.
Section 15.2 Payment Over of Proceeds Upon Dissolution, Etc.
-----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relative to the
Company or to its creditors, as such, or to its assets, or (b) any
liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any
other marshalling of assets and liabilities of the Company, then and
in any such event the holders of Senior Indebtedness shall be entitled
to receive payment in full of all amounts due or to become due on or
in respect of all Senior Indebtedness, or provision shall be made for
such payment in money or money's worth, before the Holders of the
Securities or coupons appertaining thereto are entitled to receive any
payment on account of principal of (or premium, if any) or interest
on the Securities or the payment of the coupon amounts appertaining
thereto, and to that end the holders of Senior Indebtedness shall be
entitled to receive, for application to the payment thereof, any
payment or distribution of any kind or character, whether in cash,
property or securities, which may be payable or deliverable in respect
of the Securities or coupons appertaining thereto in any such case,
proceeding, dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security or coupons
appertaining thereto shall have received any payment or distribution
of assets of the Company of any kind or character, whether in cash,
property or securities, before all Senior Indebtedness is paid in full
or payment thereof provided for, and if such fact shall, at or prior
to the time of such payment or distribution, have been made known to
the Trustee or, as the case may be, such Holder, then and in such
event such payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment
of all Senior Indebtedness remaining unpaid, to the extent necessary
to pay all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock 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 which are subordinated in right of payment to all Senior
Indebtedness which may at the time be outstanding to substantially the
same extent as, or to a greater extent than, the Securities are so
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subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or
transfer of its properties and assets substantially as an entirety to
another Person upon the terms and conditions set forth in Article VIII
shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling
of assets and liabilities of the Company for the purposes of this
Section if the Person formed by such consolidation or into which the
Company is merged or which acquires by conveyance or transfer such
properties and assets substantially as an entirety, as the case may
be, shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions set forth in Article VIII.
Section 15.3 Prior Payment to Senior Indebtedness Upon Acceleration
of Securities.
-------------------------------------------------------
In the event that any Securities or any coupons appertaining
thereto are declared due and payable before their Stated Maturity,
then and in such event the holders of Senior Indebtedness outstanding
at the time such Securities or any coupons appertaining thereto so
become due and payable shall be entitled to receive payment in full of
all amounts due or to become due on or in respect of such Senior
Indebtedness, or, provision shall be made for such payment in money or
money's worth, before the Holders of the Securities or any coupons
appertaining thereto are entitled to receive any payment by the
Company on account of the principal of (or premium, if any) or
interest on the Securities or on account of the purchase or other
acquisition of Securities or any coupons appertaining thereto;
provided, however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article
XII by delivering and crediting pursuant to Section 12.2 Securities or
any coupons appertaining thereto which have been acquired (upon
redemption or otherwise) prior to such default or which have been
converted pursuant to Article XIV.
In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any
Security or any coupons appertaining thereto prohibited by the
foregoing provisions of this Section, and if such fact shall, at or
prior to the time of such payment, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any
payment with respect to which Section 15.2 would be applicable.
Section 15.4 No Payment When Senior Indebtedness in Default.
----------------------------------------------
In the event and during the continuation of any default in
the payment of principal of (or premium, if any) or interest on any
Senior Indebtedness beyond any applicable grace period with respect
thereto, or in the event that any event of default with respect to any
Senior Indebtedness shall have occurred and be continuing and shall
have resulted in such Senior Indebtedness becoming or being declared
due and payable prior to the date on which it would otherwise have
become due and payable, unless and until such event of default shall
have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or (b) in the
event any judicial proceeding shall be pending with respect to any
such default in payment or event of default, then no payment shall be
made by the Company on account of principal of (or premium, if any) or
interest on the Securities or on account of the purchase or other
acquisition of Securities and any coupons appertaining thereto;
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provided, however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article
XII by delivering and crediting pursuant to Section 12.2 Securities
and any coupons appertaining thereto which have been acquired (upon
redemption or otherwise) prior to such default or which have been
converted pursuant to Article XIV.
In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any
Security and any coupons appertaining thereto prohibited by the
foregoing provisions of this Section, and if such fact shall, at or
prior to the time of such payment, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any
payment with respect to which Section 15.2 would be applicable.
Section 15.5 Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article or elsewhere in this Indenture
or in any of the Securities shall prevent the Company, at any time
except during the pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of the
Company referred to in Section 15.2 or under the conditions described
in Section 15.3 or 15.4, from making payments at any time of principal
of (and premium, if any) or interest on the Securities.
Section 15.6 Subrogation to Rights of Holders of Senior
Indebtedness.
------------------------------------------
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities and any coupons appertaining thereto shall
be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated
to indebtedness of the Company to substantially the same extent as the
Securities and any coupons appertaining thereto are subordinated and
is entitled to like rights of subrogation) to the rights of the
holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of (and premium, if any) and
interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders
of the Securities and any coupons appertaining thereto or the Trustee
would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities and any
coupons appertaining thereto or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Indebtedness and
the Holders of the Securities and any coupons appertaining thereto, be
deemed to be a payment or distribution by the Company to or on account
of the Senior Indebtedness.
Section 15.7 Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the
Securities and any coupons appertaining thereto on the one hand and
the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the
Securities and any coupons appertaining thereto is intended to or
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shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities and
any coupons appertaining thereto, the obligation of the Company, which
is absolute and unconditional (and which, subject to the rights under
this Article of the holders of Senior Indebtedness, is intended to
rank equally with all other general obligations of the Company), to
pay to the Holders of the Securities and any coupons appertaining
thereto the principal of (and premium, if any) and interest on the
Securities and any coupons appertaining thereto as and when the same
shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the
Securities and any coupons appertaining thereto and creditors of the
Company other than the holders of Senior Indebtedness; or (c) prevent
the Trustee or the Holder of any Security and any coupons appertaining
thereto from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness to receive
cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
Section 15.8 Trustee to Effectuate Subordination.
-----------------------------------
Each holder of a Security and any coupons appertaining thereto by
his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the
Trustee his attorney- in-fact for any and all such purposes.
Section 15.9 No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company or by any act or failure to act, in good
faith, by any such holder, or by any 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.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or
the Holders of the Securities and any coupons appertaining thereto,
without incurring responsibility to the Holders of the Securities and
any coupons appertaining thereto and without impairing or releasing
the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities and any coupons
appertaining thereto to the holders of Senior Indebtedness, do any one
or more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (iii) release any Person
liable in any manner for the collection of Senior Indebtedness; and
(iv) exercise or refrain from exercising any rights against the
Company and any other Person.
Section 15.10 Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Securities and any
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coupons appertaining thereto. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in
respect of the Securities and any coupons appertaining thereto, unless
and until the Trustee shall have received written notice thereof from
the Company or a holder of Senior Indebtedness or from any trustee
therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 6.1, shall be entitled
in all respects to assume that no such facts exist; 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 (and
premium, if any) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full
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 within three
Business Days prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a
trustee therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee therefor). In the event
that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this
Article, and if such evidence is not furnished, the Trustee may defer
any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
Section 15.11 Reliance on Judicial Order or Certificate of
Liquidating Agent.
--------------------------------------------
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of
Section 6.1, and the Holders of the Securities and any coupons
appertaining thereto shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities and any coupons appertaining
thereto, 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 or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
Section 15.12 Trustee Not Fiduciary for Holders of Senior
Indebtedness.
--------------------------------------------
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such
holders if it shall in good faith mistakenly pay over or distribute to
Holders of Securities and any coupons appertaining thereto or to the
Company or to any other Person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise.
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Section 15.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
--------------------------------------------------
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent
as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such
holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.7.
Section 15.14 Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder,
the term "Trustee" as used in this Article shall in such case (unless
the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however,
that Section 15.13 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 15.15 Certain Conversions Deemed Payment.
----------------------------------
For the purposes of this Article only, (a) the issuance and
delivery of junior securities upon conversion of Securities in
accordance with Article XIV shall not be deemed to constitute a
payment or distribution on account of the principal of or premium or
interest on Securities and any coupons appertaining thereto or on
account of the purchase or other acquisition of Securities and any
coupons appertaining thereto, and (b) the payment, issuance or
delivery of cash, property or securities (other than junior
securities) upon conversion of a Security shall be deemed to
constitute payment on account of the principal of such Security. For
the purposes of this Section, the term "junior securities" means (A)
shares of any stock of any class of the Company and (B) securities of
the Company which are subordinated in right of payment to all Senior
Indebtedness which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to
a greater extent than, the Securities are so subordinated as provided
in this Article. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities is intended to or shall impair, as
among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, the right, which is
absolute and unconditional, of the Holder of any Security to convert
such Security in accordance with Article XIV.
Section 15.16 Trust Moneys Not Subordinated.
-----------------------------
Notwithstanding anything contained herein to the contrary,
payments from moneys or the proceeds of U.S. Government Obligations
held in trust under Article XIII by the Trustee for the payment of
principal of, premium, if any, and interest on the Securities from the
date of deposit (if made in compliance with this Indenture) shall not
be subordinated to the prior payment of any Senior Indebtedness or
subject to the restraints set forth in this Article, and none of the
Holders of Securities or any coupons appertaining thereto shall be
obligated to pay over any such amount to the Company or any holder of
Senior Indebtedness of the Company or any other creditor of the
Company.
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This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to
be hereunto affixed and attested, all as of the day and year first
above written.
ROYAL GOLD, INC.
Attest:
By:_________________________________
_______________________
Attest:
-----------------------
By:__________________________________
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
On the _____ day of _______________, 19___, before me
personally came ____________________, to be known, who, being by me
duly sworn, did depose and say that he is _______________ of Royal
Gold, Inc., one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that
it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
Witness my hand and official seal.
My commission expires:
-------------------------------
-------------------------------
Notary Public
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STATE OF __________ )
) ss.
COUNTY OF _________ )
On the _____ day of _______________, 19___, before me
personally came ____________________, to be known, who, being by me
duly sworn, did depose and say that he is _______________ of
______________________________, one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by
like authority.
Witness my hand and official seal.
My commission expires:
-------------------------------
-------------------------------
Notary Public
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