Exhibit 4.6
________________________________________________________
BRE PROPERTIES, INC.
TO
[__________________________]
Trustee
____________________
Indenture
Dated as of __________________, 1997
____________________
Subordinated Debt Securities
________________________________________________________
TABLE OF CONTENTS
Page
----
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION. . . . . 2
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 2
Acquired Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Additional Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Authorized Newspaper. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bankruptcy Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CEDEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Common Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request and Company Order . . . . . . . . . . . . . . . . . . . . 4
Conversion Event. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Coupon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
European Communities. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
European Monetary System. . . . . . . . . . . . . . . . . . . . . . . . . 6
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Excess Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Foreign Currency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
GAAP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Government Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indexed Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
i
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Lien. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Original Issue Discount Security. . . . . . . . . . . . . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Place of Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Predecessor Security. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Preferred Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Repayment Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Repayment Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Security Register and Security Registrar. . . . . . . . . . . . . . . . .10
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Significant Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . .10
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Trust Indenture Act or TIA. . . . . . . . . . . . . . . . . . . . . . . .11
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
United States Person. . . . . . . . . . . . . . . . . . . . . . . . . . .11
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . . . .11
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . . .12
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 105. Notices, etc., to Trustee and Company . . . . . . . . . . . .14
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . .14
SECTION 107. Effect of Headings and Table of Contents. . . . . . . . . . .15
SECTION 108. Successors and Assigns. . . . . . . . . . . . . . . . . . . .15
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . .16
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . .16
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 112. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . .16
ARTICLE TWO - SECURITIES FORMS . . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 201. Forms of Securities.. . . . . . . . . . . . . . . . . . . . .16
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . .17
SECTION 203. Securities Issuable in Global Form. . . . . . . . . . . . . .17
ii
ARTICLE THREE - THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . .18
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . . .18
SECTION 302. Denominations.. . . . . . . . . . . . . . . . . . . . . . . .22
SECTION 303. Execution, Authentication, Delivery and Dating. . . . . . . .22
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . .24
SECTION 305. Registration, Registration of Transfer and Exchange . . . . .26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . . . .30
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . . .31
SECTION 308. Persons Deemed Owners.. . . . . . . . . . . . . . . . . . . .33
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . .33
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . .34
ARTICLE FOUR - SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . . . .34
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . .34
SECTION 402. Application of Trust Funds. . . . . . . . . . . . . . . . . .34
ARTICLE FIVE - REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . .35
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . .35
SECTION 502. Acceleration of Maturity; Rescission and Annulment. . . . . .37
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . .38
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . .39
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
or Coupons. . . . . . . . . . . . . . . . . . . . . . . . . .40
SECTION 506. Application of Money Collected. . . . . . . . . . . . . . . .40
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . .40
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, if any, and Interest and Additional Amounts. . . . .41
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . . . . .41
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . .41
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . .42
SECTION 512. Control by Holders of Securities. . . . . . . . . . . . . . .42
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . .42
SECTION 514. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . .43
SECTION 515. Undertaking for Costs . . . . . . . . . . . . . . . . . . . .43
ARTICLE SIX - THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . .43
SECTION 601. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . .43
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . . . . . .44
SECTION 603. Not Responsible for Recitals or Issuance of Securities. . . .45
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . . . . . . .45
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . . . . . .45
SECTION 606. Compensation and Reimbursement. . . . . . . . . . . . . . . .45
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests . . . . . . . . . . . . . . . . . . . . . . . . . .46
SECTION 608. Resignation and Removal; Appointment of Successor . . . . . .46
SECTION 609. Acceptance of Appointment by Successor. . . . . . . . . . . .48
SECTION 610. Merger, Conversion, Consolidation or Succession to Business .49
SECTION 611. Appointment of Authenticating Agent . . . . . . . . . . . . .49
iii
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY. . . . . . .52
SECTION 701. Disclosure of Names and Addresses of Holders. . . . . . . . .52
SECTION 702. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . .52
SECTION 703. Reports by Company. . . . . . . . . . . . . . . . . . . . . .52
SECTION 704. Company to Furnish Trustee Names and Addresses of Holders . .53
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE . . . . . . .54
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions . . . . .54
SECTION 802. Rights and Duties of Successor Corporation. . . . . . . . . .54
SECTION 803. Officers' Certificate and Opinion of Counsel. . . . . . . . .55
ARTICLE NINE - SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . .55
SECTION 901. Supplemental Indentures Without Consent of Holders. . . . . .55
SECTION 902. Supplemental Indentures with Consent of Holders.. . . . . . .56
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . . . . .57
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . .58
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . .58
SECTION 906. Reference in Securities to Supplemental Indentures. . . . . .58
ARTICLE TEN - COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . .58
SECTION 1001. Payment of Principal, Premium, if any, Interest and
Additional Amounts. . . . . . . . . . . . . . . . . . . . . .58
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . .58
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . .60
SECTION 1004. Existence . . . . . . . . . . . . . . . . . . . . . . . . . .62
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . .62
SECTION 1006. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . .62
SECTION 1007. Payment of Taxes and Other Claims . . . . . . . . . . . . . .62
SECTION 1008. Provision of Financial Information. . . . . . . . . . . . . .63
SECTION 1009. Statement as to Compliance. . . . . . . . . . . . . . . . . .63
SECTION 1010. Additional Amounts. . . . . . . . . . . . . . . . . . . . . .63
SECTION 1011. Waiver of Certain Covenants . . . . . . . . . . . . . . . . .64
ARTICLE ELEVEN - REDEMPTION OF SECURITIES. . . . . . . . . . . . . . . . . . .64
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . . . . .65
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . .65
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . . . .65
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . .65
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . .67
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . .67
SECTION 1107 Securities Redeemed in Part . . . . . . . . . . . . . . . . .68
SECTION 1108. Conversion Arrangement on Call for Redemption . . . . . . . .68
ARTICLE TWELVE - SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . .69
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . . . . .69
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . .69
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . .70
iv
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS. . . . . . . . . . . . .70
SECTION 1301. Applicability of Article. . . . . . . . . . . . . . . . . . .70
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . . . . . .70
SECTION 1303. Exercise of Option. . . . . . . . . . . . . . . . . . . . . .71
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable . . . . . . . . . . . . . . . . . . . . . . . . . . .71
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . . . . . .72
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE. . . . . . . . . . . . .72
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance . . . . . . . . . . . . . .73
SECTION 1402. Defeasance and Discharge. . . . . . . . . . . . . . . . . . .73
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . .73
SECTION 1404. Conditions to Defeasance or Covenant Defeasance . . . . . . .74
SECTION 1405. Deposited Money and Government Obligations To Be Held in
Trust; Other Miscellaneous Provisions . . . . . . . . . . . .76
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES. . . . . . . . . . . . . .77
SECTION 1501. Purposes For Which Meetings May Be Called . . . . . . . . . .77
SECTION 1502. Call, Notice and Place of Meetings. . . . . . . . . . . . . .77
SECTION 1503. Persons Entitled to Vote at Meetings. . . . . . . . . . . . .77
SECTION 1504. Quorum: Action . . . . . . . . . . . . . . . . . . . . . . .78
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . .79
SECTION 1506. Counting Votes and Recording Action of Meetings . . . . . . .80
ARTICLE SIXTEEN - CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . . .80
SECTION 1601. Applicability of Article. . . . . . . . . . . . . . . . . . .80
SECTION 1602. Right of Holders to Convert Securities into Common Shares . .80
SECTION 1603. Issuance of Common Shares on Conversions. . . . . . . . . . .81
SECTION 1604. No Payment or Adjustment for Interest or Dividends. . . . . .82
SECTION 1605. Adjustment of Conversion Price. . . . . . . . . . . . . . . .82
SECTION 1606. No Fractional Shares to be Issued . . . . . . . . . . . . . .86
SECTION 1607. Preservation of Conversion Rights Upon Consolidation,
Merger, Sale or Conveyance. . . . . . . . . . . . . . . . . .86
SECTION 1608. Notice to Holders of the Securities of a Series Prior to
Taking Certain Types of Action. . . . . . . . . . . . . . . .87
SECTION 1609. Covenants to Reserve Shares for Issuance on Conversion of
Securities. . . . . . . . . . . . . . . . . . . . . . . . . .88
SECTION 1610. Compliance with Governmental Requirements . . . . . . . . . .88
SECTION 1611. Payment of Taxes Upon Certificates for Shares Issued Upon
Conversion. . . . . . . . . . . . . . . . . . . . . . . . . .88
SECTION 1612. Trustee's Duties With Respect to Conversion Provisions. . . .89
SECTION 1613. Conversion of Securities Into Preferred Stock . . . . . . . .89
ARTICLE SEVENTEEN - SUBORDINATION OF SECURITIES. . . . . . . . . . . . . . . .89
SECTION 1701. Securities Subordinated to Senior Indebtedness. . . . . . . .89
SECTION 1702. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . .91
SECTION 1703. Obligations of the Company Unconditional. . . . . . . . . . .91
SECTION 1704. Payments on Securities Permitted. . . . . . . . . . . . . . .92
v
SECTION 1705. Effectuation of Subordination by Trustee. . . . . . . . . . .92
SECTION 1706. Knowledge of Trustee. . . . . . . . . . . . . . . . . . . . .92
SECTION 1707. Trustee May Hold Senior Indebtedness. . . . . . . . . . . . .92
SECTION 1708. Rights of Holders of Senior Indebtedness Not Impaired . . . .92
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGEMENTS
EXHIBIT A - FORMS OF CERTIFICATION
vi
BRE PROPERTIES, INC.
Reconciliation and tie between Trust Indenture Act of 1939 (the "1939
Act") and Indenture, dated as of January ___, 1997.
1939 ACT SECTION INDENTURE SECTION
---------------- -----------------
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . 607(a)
(a)(2) . . . . . . . . . . . . . . . . . . . . . 607(a)
(b). . . . . . . . . . . . . . . . . . . . . . . 607(b), 608
Section 312(c). . . . . . . . . . . . . . . . . . . . . . . 701
Section 314(a). . . . . . . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . . . . . 1006
(c)(1) . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . 102
(e). . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(b). . . . . . . . . . . . . . . . . . . . . . . 601
Section 316(a) (last sentence). . . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A). . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B). . . . . . . . . . . . . . . . . . . . 513
(b). . . . . . . . . . . . . . . . . . . . . . . 508
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . 504
Section 318(a). . . . . . . . . . . . . . . . . . . . . . . 111
(c). . . . . . . . . . . . . . . . . . . . . . . 111
___________________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including 317 of the
1939 Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
INDENTURE dated as of _________________, 1997, between BRE PROPERTIES,
INC., a Maryland corporation (hereinafter called the "Company"), having its
principal office at One Xxxxxxxxxx Street, Telesis Tower, Suite 2500, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000-0000, and [___________________],a corporation duly
organized and existing under the laws of the State of ______________, as Trustee
hereunder (hereinafter called the "Trustee"), having its Corporate Trust Office
at [______________________ ______________________].
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes subordinated debt securities (hereinafter called the "Debt Securities")
evidencing its unsecured and subordinated indebtedness, and has duly authorized
the execution and delivery of this Indenture to provide for the issuance from
time to time of the Debt Securities, unlimited as to principal amount, to bear
interest at the rates or formulas, to mature at such times and to have such
other provisions as shall be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, 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 Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Debt Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper," as
used in TIA Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
2
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five, Article Six
and Article Ten, are defined in those Articles.
"ACQUIRED DEBT" means Debt of a Person (i) existing at the time such Person
is merged or consolidated with or into, or becomes a Subsidiary of, the Company
or (ii) assumed by the Company or any of its Subsidiaries in connection with the
acquisition of assets from such Person. Acquired Debt shall be deemed to be
incurred on the date the acquired Person is merged or consolidated with or into,
or becomes a Subsidiary of, the Company or the date of the related acquisition
as the case may be.
"ACT", when used with respect to any Holder, has the meaning specified in
Section 104.
"ADDITIONAL AMOUNTS" means any additional amounts which are required by a
Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Company in respect of certain taxes imposed on
certain Holders and which are owing to such Holders.
"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.
"AUTHENTICATING AGENT" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"AUTHORIZED NEWSPAPER" means a newspaper, printed 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 each place in connection with which the
terms is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"BANKRUPTCY LAW" has the meaning specified in Section 501.
"BEARER SECURITY" means any Security established pursuant to Section 201
which is payable to bearer.
3
"BOARD OF DIRECTORS" means the board of directors of the Company, the
executive committee or any committee of that board duly authorized to act
hereunder.
"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 or any other
particular location referred to in this Indenture or in the Debt Securities,
means, unless otherwise specified with respect to any Debt Securities pursuant
to Section 301, any day, other than a Saturday or Sunday, that is neither a
legal holiday nor a day on which banking institutions in that Place of Payment
or particular location are authorized or required by law, regulation or
executive order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"COMMISSION" means the Debt Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after 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 on such date.
"COMMON SHARES" means, with respect to any Person, capital stock issued by
such Person other than Preferred Shares.
"COMPANY" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, a written request
or order signed in the name of the Company by its Chairman of the Board, the
President or a Vice President, and by its Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee.
"CONVERSION EVENT" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(of composite currency) other than the ECU for the purposes for which it was
established.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at
_______________________________________________.
"CORPORATION" includes corporations, associations, companies and business
trusts.
4
"COUPON" means any interest coupon appertaining to a Bearer Security.
"CUSTODIAN" has the meaning specified in section 501.
"DEBT" means, with respect to any Person, any indebtedness of such Person,
whether or not contingent, in respect of (i) borrowed money or as evidenced by
bonds, notes, debentures or similar instruments, (ii) indebtedness secured by
any Lien on any property or asset owned by such Person, but only to the extent
of the lesser of (x) the amount of indebtedness so secured and (y) the fair
market value (determined in good faith by the board of directors of such Person
or, in the case of the Company or a Subsidiary, by the Company's Board of
Directors) of the property subject to such Lien, (iii) reimbursement
obligations, contingent or otherwise, in connection with any letters of credit
actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property except any such balance that constitutes an
accrued expense or trade payable or (iv) any lease of property by such Person as
lessee which is required to be reflected on such Person's balance sheet as a
capitalized lease in accordance with GAAP, and also includes, to the extent not
otherwise included, any obligation of such Person to be liable for, or to pay,
as obligor, guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), Debt of the types referred to above of another
Person (it being understood that Debt shall be deemed to be incurred by such
Person whenever such Person shall create, assume, guarantee or otherwise become
liable in respect thereof.)
"DEBT SECURITY" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Debt Security or Debt Securities
authenticated and delivered under this Indenture; PROVIDED, HOWEVER, that, if at
any time there is more than one Person acting as Trustee under this Indenture,
"Debt Securities" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture and
shall more particularly mean Debt Securities authenticated and delivered under
this Indenture, exclusive, however, of Debt Securities of any series as to which
such Person is not Trustee.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"EUROCLEAR" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"EUROPEAN COMMUNITIES" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
5
"EUROPEAN MONETARY SYSTEM" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"EVENT OF DEFAULT" has the meaning specified in Article Five.
"EXCESS PROCEEDS" has the meaning specified in Section 1609.
"FOREIGN CURRENCY" means any currency, currency unit or composite currency,
including, without limitation, the ECU, issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such governments.
"GAAP" means generally accepted accounting principles, as in effect from
time to time, as used in the United States applied on a consistent basis.
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct obligations
of the United States of America or the government which issued the Foreign
Currency in which the Debt Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the foreign
currency in which the Debt Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest or
on principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, PROVIDED that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"HOLDER" means, in the case of a Registered Security, the Person in whose
name a 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,
shall mean 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, and shall include the terms of particular series of Debt Securities
established as contemplated by Section 301; PROVIDED, HOWEVER, that, if at
any time more than one Person is acting as Trustee under this instrument,
"INDENTURE" shall mean, with respect to any one or more series of Debt
Securities for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of the or those particular
series of Debt Securities for which
6
such Person is Trustee established as contemplated by Section 301, exclusive,
however, of any provisions or terms which relate solely to other series of
Debt Securities for which such Person is Trustee, regardless of when such
terms or provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person,
as such Trustee, was not a party.
"INDEXED SECURITY" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"INTEREST", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, shall mean interest
payable after Maturity, and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1005, includes such
Additional Amounts.
"INTEREST PAYMENT DATE", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"LIEN" means any mortgage, deed of trust, lien, charge, pledge, security
interest or other encumbrance of any kind.
"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, notice of redemption, notice of option to elect
repayment or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of the
Board of Directors, the President or a Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company and
delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel
for the Company or who may be an employee of or other counsel for the Company
and who shall be satisfactory 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 502.
"OUTSTANDING", when used with respect to Debt Securities, means, as of the
date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Debt Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
7
(ii) Debt Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder 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 Debt Securities and any coupons appertaining thereto,
PROVIDED that, if such Debt 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;
(iii) Debt Securities, except to the extend provided in Sections
1402 and 1403, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Fourteen;
(iv) Debt Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant tot his Indenture, other than any such
Debt Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Debt Securities are held by a
bona fide purchaser in whose hands such Debt Securities are valid
obligations of the Company; and
(v) Debt Securities converted into Common Shares or Preferred Shares
in accordance with or as contemplated by this Indenture, if the terms of
such Debt Securities provide for convertibility pursuant to Section 301;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders for quorum purposes, and for the purpose of
making the calculations required by TIA Section 313, (i) the principal amount of
an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Company, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) Debt Securities
owned by the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in
8
determining whether the Trustee shall be protected in making such calculation
or in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Debt Securities which the Trustee knows to be
so owned shall be so disregarded. Debt 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 Debt Securities and that the pledgee is not the Company
or any other obligor upon the Debt Securities or any Affiliate of the Company
or of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities or coupons
on behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the Debt Securities of or
within any series, means the place or places where the principal of (and
premium, if any) and interest on such Debt Securities are payment as specified
as contemplated by Sections 301 and 1002.
"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 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"PREFERRED SHARES" means, with respect to any Person, capital stock issued
by such Person that is entitled to a preference or priority over any other
capital stock issued by such Person upon any distribution of such Person's
assets, whether by dividend or upon liquidation.
"REDEMPTION DATE", when used with respect to any Security to be redeemed,
in whole or in part, 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" shall mean any Security which is registered in the
Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date
on the Registered Debt Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
9
"REPAYMENT DATE" means, when used with respect to any Security to be repaid
at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"REPAYMENT PRICE" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or vice-
chairman of the executive committee of the board of directors, the president,
any vice president (whether or not designated by a number or a word or words
added before of after the title "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
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective meanings
specified in Section 305.
"SENIOR INDEBTEDNESS" means (i) the principal of and premium, if any, and
unpaid interest, if any, on indebtedness for money borrowed or evidenced by a
bond, note, debenture or similar instrument, (ii) purchase money and similar
obligations, (iii) obligations under capital leases, (iv) guarantees,
assumptions or purchase commitments relating to, or other transactions as a
result of which the Company is responsible for the payment of, indebtedness and
obligations of others of the types referred to in clauses (i) through (iii)
above, (v) renewals, extensions and refunding of any such indebtedness or
obligations, (vi) interest in respect of any such indebtedness or obligations
accruing after the commencement of any insolvency or bankruptcy proceedings and
(vii) obligations associated with derivative products such as interest rate and
currency exchange contracts, foreign exchange contracts, commodity contracts,
and similar arrangements, unless, in each case, the instrument by which the
Company incurred, assumed or guaranteed the indebtedness or obligations
described in clauses (i) through (vii) expressly provides that such indebtedness
or obligation is subordinate or junior in right of payment to all other
indebtedness of the Company or is not senior in right of payment to the
Subordinated Debt Securities or ranks pari passu with or subordinate to the
Subordinated Debt Securities in right of payment.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X promulgated
under the Securities Act of 1933 as in effect on January 1, 1996) of the
Company.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Registered Debt Securities of or within any series means a date fixed by the
Trustee pursuant to Section 307.
"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 or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
10
"SUBSIDIARY" means (i) a corporation a majority of whose voting stock is at
the time, directly or indirectly, owned by the Company, by the Company and one
or more of its Subsidiaries, or by one or more Subsidiaries of the Company, and
(ii) any Person (other than a corporation) a majority of whose equity interests
are at one time, directly or indirectly, owned by the Company, by the Company
and one or more of its Subsidiaries, or by one or more Subsidiaries of the
Company.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph of
this Indenture 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; PROVIDED, HOWEVER, that if
at any time there is more than one such Person, "Trustee" as used with respect
to the Debt Securities of any series shall mean only the Trustee with respect to
Debt Securities of that series.
"UNITED STATES" means, unless otherwise specified with respect to any Debt
Securities pursuant to Xxxxxxx 000, xxx Xxxxxx Xxxxxx xx Xxxxxxx (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"UNITED STATES PERSON" means, unless otherwise specified with respect to
any Debt Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"YIELD TO MATURITY" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. 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 an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provisions of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Section 1004)
shall include:
11
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been satisfied or complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been satisfied or complied with.
SECTION 103. 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 as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as 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 the Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Debt Securities of all series or
one or more series, as the case may be, may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in
person or by agents duly appointed in writing. If Debt Securities of a series
are issuable as Bearer Debt Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Debt Securities of such series may,
alternatively, be embodied in and evidenced by the record of Holders of Debt
Securities of such series voting in favor thereof, either in person or by
proxies
12
duly appointed in writing, at any meeting of Holders of Debt Securities of
such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument
or instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security,
shall be sufficient for any purpose of this Indenture and conclusive in favor
of the Trustee and the Company and any agent of the Trustee or the Company,
if made in the manner provided in this Section. The record of any meeting of
Holders of Debt Securities shall be proved in the manner provided in Section
1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signed acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Debt Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Debt Securities may be proved by the
production of such Bearer Debt Securities or by a certificate executed, as
depository, by any trust company, bank, banker or other depository, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depository, or exhibited to it, the Bearer Debt Securities therein described; or
such facts may be proved by the certificate or affidavit of the Person holding
such Bearer Debt 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 continued until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some other
Person, or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding. The ownership
of Bearer Debt Securities may also be proved in any other manner which the
Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered Debt
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
13
Notwithstanding TIA Section 316(C), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, directive, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding Debt
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Debt Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to the Trustee
by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides for
notice of any event to Holders of Registered Debt Securities by the Company or
the Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered Debt Securities 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 of Registered Debt Securities or the sufficiency of any notice to
Holders of Bearer Debt Securities given as provided herein. Any notice mailed
to a Holder in the manner
14
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension or of irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification to Holders of Registered Debt Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Debt Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Debt Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
[The City of New York] and in such other city or cities as may be specified in
such Debt Securities on a Business Day, such publication to be not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. Any such notice shall be deemed to have been given on
the date of such publication or, if published more than once, on the date of the
first such publication.
If by reason of the suspension of publication 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 Debt Securities as
provided above, then such notification to Holders of Bearer Debt Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to give
notice by publication to any particular Holder of Bearer Debt Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of such notice with respect to other Holders of Bearer Debt
Securities or the sufficiency of any notice to Holders of Registered Debt
Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be 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 107. 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 108. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Indenture by the company shall bind its successors and assigns, whether so
expressed or not.
15
SECTION 109. SEPARABILITY CLAUSE. In case any provision in this Indenture
or in any Security or coupon 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 110. BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Debt Securities or coupons, express or implied, shall give to any Person, other
than the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the Debt Securities and
coupons shall be governed by and construed in accordance with the law of the
State of California. This Indenture is subject to the provisions of the TIA
that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or any Security or
coupon other than a provision in the Debt Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium, if any) 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, Redemption Date, Repayment Date or
sinking fund payment date, or at the Stated Maturity or Maturity, PROVIDED that
no interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS OF DEBT SECURITIES. The Registered Debt Securities, if
any, of each series and the Bearer Debt Securities, if any, of each series and
related coupons shall be in substantially the forms as shall be established in
one or more indentures supplemental hereto or approved from time to time by or
pursuant to a Board Resolution in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Debt Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer Debt
Securities shall have interest coupons attached.
16
The definitive Debt Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Debt Securities or coupons, as
evidenced by their execution of such Debt Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. Subject to
Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
[________________]
as Trustee
By_________________________________
Authorized Officer
SECTION 203. DEBT SECURITIES ISSUABLE IN GLOBAL FORM. If Debt Securities
of or within a series are issuable in global form, as specified as contemplated
by Section 301, then, notwithstanding clause (8) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Debt Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Debt
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Debt Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Debt Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 303 or 304. Subject to the
provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Debt Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 303.
17
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of and any premium and
interest on any Security in permanent global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company an
the trustee shall treat as the Holder of such principal amount of Outstanding
Debt Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent global
Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Debt Securities which may be authenticated and delivered
under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in one or more Board Resolution or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, 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 Debt
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Debt Securities of the series when issued from time to time):
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of such series from all other series of Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt Securities
of the series that may be authenticated and delivered under this Indenture
(except for Debt Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Debt Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will be
determined or extended, on which the principal of the Debt Securities of the
series shall be payable;
(4) the rate or rates at which the Debt Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest Payment
Dates on which such interest will be payable and the Regular Record Date, if
any, for the interest payable on any Registered Security on any Interest Payment
Date, or the method by which such date shall be determined, and the method by
which such date shall be
18
determined, and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the [Borough
of Manhattan, The City of New York], where the principal of (and premium, if
any), interest, if any, on, and Additional Amounts, if any, payable in respect
of, Debt Securities of the series shall be payable, any Registered Debt
Securities of the series may be surrendered for registration of transfer, Debt
Securities of the series may be surrendered for transfer, exchange or conversion
and notices or demands to or upon the Company in respect of the Debt Securities
of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which, the
currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Debt Securities
of the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or purchase
Debt Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods within
which or the date or dates on which, the price or prices at which, the currency
or currencies, currency unit or units or composite currency or currencies in
which, and other terms and conditions upon which Debt Securities of the series
shall be redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Debt Securities of the series
shall be issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Debt Securities of the series
shall be issuable;
(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or,
if applicable, the portion of the principal amount of Debt Securities of the
series that is convertible in accordance with the provisions of this Indenture
or the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Foreign Currencies in
which payment of the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Debt Securities of the series shall be
payable or in which the Debt Securities of the series shall be denominated;
(12) whether the amount of payments of principal of (and premium, if any)
or interest, if any, on the Debt Securities of the series may be determined with
reference to an index, formula or other method (which index, formula or method
may be based, without limitation, on one or
19
more currencies, currency units, composite currencies, commodities, equity
indices or other indices), and the manner in which such amounts shall be
determined;
(13) whether the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Debt Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in a currency or
currencies, currency unit or units or composite currency or currencies other
than that in which such Debt Securities are denominated or stated to be payable,
the period or periods within which, and the terms and conditions upon which,
such election may be made, and the time and manner of, and the identity of the
exchange rate agent with responsibility for, determining the exchange rate
between the currency or currencies, currency unit or units or composite currency
or currencies in which such Debt Securities are denominated or stated to be
payable and the currency or currencies, currency unit or units or composite
currency or currencies in which such Debt Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of Debt
Securities of the series upon the occurrence of such events as may be specified;
(15) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to Debt Securities of the
series, whether or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein;
(16) whether Debt Securities of the series are to be issuable as Registered
Debt Securities, Bearer Debt Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Debt Securities
and the terms upon which Bearer Debt Securities of the series may be exchanged
for Registered Debt Securities of the series and vice versa (if permitted by
applicable laws and regulations), whether any Debt Securities of the series of
the series are to be issuable initially in temporary global form and whether any
Debt Securities of the series are to be issuable in permanent global form with
or without coupons and, if so, whether beneficial owners of interests in any
such permanent global Security may exchange such interests for Debt Securities
of such series and of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges my occur, if other than in the
manner provided in Section 305, and, if Registered Debt Securities of the series
are to be issuable as a global Security, the identity of the depository for such
series;
(17) the date as of which any Bearer Debt Securities of the series and any
temporary global Security representing Outstanding Debt Securities of the series
shall be dated if other than the date of original issuance of the first Security
of the series to be issued;
(18) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Debt Securities) is registered at the close of
business on the Regular Record Date for such interest, 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
20
a temporary global Security on an Interest Payment Date will be paid if other
that in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the Debt
Securities of the series and any provisions in modification of, in addition to
or in lieu of any of the provisions of Article Fourteen;
(20) if the Debt Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms of such
certificates, documents or conditions;
(21) if the Debt Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Debt Securities to be
authenticated and delivered;
(22) whether and under what circumstances the Company will pay Additional
Amounts as contemplated by Section 1005 on the Debt Securities of the series to
any Holder who is not a United States person (including any modification to the
definition of such term) in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to redeem such Debt
Securities rather than pay such Additional Amounts (and the terms of any such
option);
(23) the obligation, if any, of the Company to permit the conversion of the
Debt Securities of such series into the Company's Common Shares or Preferred
Shares, (and the class thereof), as the case may be, and the terms and
conditions upon which such conversion shall be effected (including, without
limitation, the initial conversion price or rate, the conversion period, any
adjustment of the applicable conversion price, and any requirements relative to
reservation of shares for purposes of conversion; and
(24) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Debt Securities of any one series and the coupons appertaining to any
Bearer Debt Securities of such series shall be substantially identical except,
in the case of Registered Debt Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Debt Securities of any one series need not
be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuance's of additional Debt
Securities of such series.
If any of the terms of the Debt Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) 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 Officer's Certificate setting forth the terms of the Debt
Securities of such series.
21
SECTION 302. DENOMINATIONS. The Debt Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Debt Securities of any series denominated in Dollars, in
the absence of any such provisions with respect to the Debt Securities of any
series, the Registered Debt Securities of such series, other than Registered
Debt Securities issued in global form (which may be of any denomination), shall
be issuable in denominations of $1,000 and any integral multiple thereof and the
Bearer Debt Securities of such series, other than Bearer Debt Securities issued
in global form (which may be of any denomination), shall be issuable in
denominations of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Debt
Securities and any coupons appertaining thereto shall be executed on behalf of
the Company by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon, and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Debt Securities and coupons may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Debt Securities.
Debt Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the date of such Debt Securities or
coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Debt Securities of any series, together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Debt Securities; PROVIDED, HOWEVER,
that, in connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States; and PROVIDED
FURTHER that, unless otherwise specified with respect to any series of Debt
Securities pursuant to Section 301, a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished a certificate to Euroclear or CEDEL,
as the case may be, in the form set forth in Exhibit A-1 to this Indenture or
such other certificate as may be specified with respect to any series of Debt
Securities pursuant to Section 301, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date on
which any temporary Security first becomes exchangeable for such Bearer Security
in accordance with the terms of such temporary Security and this Indenture. If
any Security shall be represented by a permanent global Bearer Security, then,
for purposes of this Section and Section 304, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any
22
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and canceled.
If all the Debt Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Debt Securities and determining the terms of
particular Debt Securities of such series, such as interest rate or formula,
maturity date, date of issuance and date from which interest shall accrue. In
authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to TIA Section 315(a) through
315(d)) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Debt Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(b) the terms of such Debt Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Debt Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, except as limited
by any applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting the enforcement of creditors'
rights generally and general equitable principles; and
(ii) an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the issuance of the Debt
Securities have been complied with and that, to the best of the knowledge
of the signers of such certificate, that no Event of Default with respect
to any of the Debt Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Debt Securities if the issue of such Debt
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties, obligations or immunities under the Debt Securities and this Indenture
or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Debt Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Officers' Certificate otherwise
required pursuant to Section 301 or a Company Order, or an Opinion of Counsel or
an Officers' Certificate otherwise required pursuant to the preceding paragraph
at the time of issuance of each Security of such series, but such order, opinion
and
23
certificates, with appropriate modifications to cover such future issuance's,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
or Security to which such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of an authorized officer, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. TEMPORARY DEBT SECURITIES. (a) Pending the preparation of
definitive Debt Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Debt
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Debt Securities in lieu of which they are issued, in
registered form, or, if authorized, in bearer form with one or more coupons or
without coupons, and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Debt Securities may
determine, as conclusively evidenced by their execution of such Debt Securities.
In the case of Debt Securities of any series, such temporary Debt Securities may
be in global form.
Except in the case of temporary Debt Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Debt Securities of any series are
issued, the Company will cause definitive Debt Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive Debt
Securities of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series upon surrender of the
temporary Debt 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 Debt Securities of any
series (accompanied by any non-matured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Debt Securities of the same
series of authorized denominations; PROVIDED, HOWEVER, that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged,
the temporary Debt Securities of any series shall in all
24
respects be entitled to the same benefits under this Indenture as definitive
Debt Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 304(b) shall govern the exchange of temporary Debt Securities issued in
global form other than through the facilities of The Depository Trust Company.
If any such temporary Debt Securities of any series are issued in global form,
then such temporary global 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, for credit to the
respective accounts of the beneficial owners of such Debt 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
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Debt Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global 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 Debt Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Debt Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary global Security
to be exchanged. The definitive Debt Securities to be delivered in exchange for
any such temporary global Security shall be in bearer form, registered form,
permanent global bearer form or permanent global registered form, or any
combination thereof, as specified by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; PROVIDED,
HOWEVER, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global 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 Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and PROVIDED FURTHER that definitive Bearer Debt
Securities shall be delivered in exchange for a portion of a temporary global
Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Debt Securities of a series in a temporary global
Security shall be exchanged for definitive Debt Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Debt Securities and each Paying Agent. Unless
25
otherwise specified in such temporary global Security, any such exchange
shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Debt Securities
must bear the cost of insurance, postage, transportation and the like unless
such Person takes delivery of such definitive Debt Securities in person at
the offices of Euroclear or CEDEL. Definitive Debt Securities in bearer form
to be delivered in exchange for any portion of a temporary global Security
shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Debt
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Debt Securities of the same series and of
like tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Debt Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
and CEDEL on such Interest Payment Date upon delivery by Euroclear and CEDEL to
the Trustee of a certificate or certificates in the form set forth in Exhibit A-
2 to this Indenture (or in such other forms as may be established pursuant to
Section 301), for credit without further interest on or after such Interest
Payment Date to the respective accounts of Persons who are the beneficial owners
of such temporary global Security on such Interest Payment Date and who have
each delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was made
will be exchanged for definitive Debt Securities of the same series and of like
tenor on the Exchange Date or the date of certification if such date occurs
after the Exchange Date, without further act or deed by such beneficial owners.
Except as otherwise provided in this paragraph, no payments of principal or
interest owing with respect to a beneficial interest in a temporary global
Security will be made unless and until such interest in such temporary global
Security shall have been exchanged for an interest in a definitive Security.
Any interest so received by Euroclear and CEDEL and not paid as herein provided
shall be returned, prior to the expiration of two years after such Interest
Payment Date, (i) to the Trustee, in order to be repaid to the Company, if
originally paid by the Trustee, and (ii) to the Company, if originally paid by
the Company. The Trustee shall be under no duty to make any inquiry of either
Euroclear or CEDEL as to whether any such interests remains unpaid.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. The
Company shall cause to be kept at the Corporate Trust Office of the trustee or
in any office or agency of the Company in a Place of Payment a register for each
series of Debt Securities (the registers maintained in such office or in any
such office or agency of the Company in a Place of Payment being herein
sometimes referred to collectively as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Debt Securities and of transfers of
Registered Debt Securities. The Security Register shall be in written form or
any other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
26
"Security Registrar" for the purpose of registering Registered Debt Securities
and transfers of Registered Debt Securities on such Security Register as herein
provided. In the event that the Trustee shall cease to be Security Registrar,
it shall have the right to examine the Security Register at all reasonable
times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Company 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 Debt
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, bearing a number not contemporaneously outstanding,
and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the Holder,
Registered Debt Securities of any series may be exchanged for other registered
Debt Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Debt Securities are so
surrendered for exchange, to be exchanged at any such office or agency.
Whenever any such Registered Debt Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Debt Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified with respect to any series of Debt
Securities as contemplated by Section 301, Bearer Debt Securities may not be
issued in exchange for Registered Debt Securities.
If (but only if) permitted by the applicable Board Resolution and (subject
to Section 303) set forth in the applicable Officers' Certificate, or in any
indenture supplemental hereto, delivered as contemplated by Section 301, at the
option of the Holder, Bearer Debt Securities of any series may be exchanged for
Registered Debt Securities of the same series of any authorized denominations
and of a like aggregate principal amount and tenor, upon surrender of the Bearer
Debt 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, any such permitted exchange may be
effected if the Bearer Debt 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 the portion of
such payment equal to the face amount of such surrendered coupon; PROVIDED,
HOWEVER, that, except as otherwise provided in section 1002, 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 a permitted 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
27
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.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is the Depository trust Company ("DTC"), then, unless the terms of such
global Security expressly permit such global Security to be exchanged in whole
or in part for definitive Debt Securities, a global Security may be transferred,
in whole but not in part, only to a nominee of DTC, or by a nominee of DTC to
DTC, or to a successor to DTC for such global Security selected or approved by
the Company or to a nominee of such successor to DTC. If at any time DTC
notifies the Company that it is unwilling or unable to continue as depositary
for the applicable global Security or Debt Securities or if at any time DTC
ceases to be a clearing agency registered under the Securities Exchange Act
of 1934 if so required by applicable law or regulation, the Company shall
appoint a successor depositary with respect to such global Security or Debt
Securities. If (x) a successor depositary for such global Security or Debt
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, (y) an Event of
Default has occurred and is continuing and the beneficial owners representing a
majority in principal amount of the applicable series of Debt Securities
represented by such global Security or Debt Securities advise DTC to cease
acting as depository for such global Security or securities, or (z) the Company,
in its sole discretion, determines at any time that all Outstanding Debt
Securities (but not less than all) of any series issued or issuable in the form
of one or more global Debt Securities shall no longer be represented by such
global Security or Debt Securities, then the Company shall execute, and the
Trustee shall authenticate and deliver, definitive Debt Securities of like
series, rank, tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such global Security or Debt Securities.
If any beneficial owner of any interest in a permanent global Security is
otherwise entitled to exchange such interest for Debt Securities of such series
and of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and provided that any
applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
execute, and the Trustee shall authenticate and deliver, definitive Debt
Securities in aggregate principal amount equal to the principal amount of such
beneficial owner's interest in such permanent global Security. On or after the
earliest date on which such interests may be so exchanged, such permanent global
Security shall be surrendered for exchange by DTC or such other depositary as
shall be specified in the Company Order with respect thereto to the Trustee, as
the Company's agent for such purpose; PROVIDED, HOWEVER, that no such exchanges
may occur during a period beginning at the opening of business 15 days before
any selection of Debt Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; and PROVIDED FURTHER that no
28
Bearer Security delivered in exchange for a portion of a permanent global
Security shall be mailed or otherwise delivered to any location in the United
States. If a Registered Security is issued in exchange for any portion of a
permanent global Security after the close of business at the office or agency
where such exchange occurs 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 the opening of business at such
office or agency on the related proposed date for payment of Defaulted
Interest, 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 such Registered Security, but will be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such
permanent global Security is payable in accordance with the provisions of
this Indenture.
All Debt Securities issued upon any registration of transfer or exchange of
Debt Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Debt
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) 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 or redemption of Debt 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 Debt
Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305 not
involving any transfer.
The Company or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be
among those selected for redemption during a period beginning at the opening of
business 15 days before selection of the Debt Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such Debt Securities
are issuable only as Registered Debt Securities, the day of the mailing of the
relevant notice of redemption and (B) if such Debt Securities are issuable as
Bearer Debt Securities, the day of the first publication of the relevant notice
of redemption or, if such Debt Securities are also issuable as Registered Debt
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except, in the case of
any Registered Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor, PROVIDED that such registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security not to be
so repaid.
29
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES. If
any mutilated Security or a Security with a mutilated coupon appertaining to it
is surrendered to the trustee or the Company, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request 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 principal
amount, containing identical terms and provisions 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.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, 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, pay such Security or
coupon; PROVIDED, HOWEVER, that payment of principal of (and premium, if any),
any interest on and any additional Amounts with respect to, Bearer Debt
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Debt Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities of that series and their
coupons, if any, duly issued hereunder.
30
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 Debt Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Except as
otherwise specified with respect to a series of Debt Securities in accordance
with the provisions of Section 301 or as provided in Article XVI with respect to
Debt Securities convertible into Common Shares or Preferred Shares, interest on
any registered Security that is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Debt Securities) is registered at the close
of business on the regular Record Date for such interest at the office or agency
of the Company maintained for such purpose pursuant to Section 1002; PROVIDED,
HOWEVER, that each installment of interest on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to section 308,
to the address of such Person as it appears on the Security Register or
(ii) transfer to an account maintained by the payee located inside the United
States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Debt Securities of any series, payment of interest may be made, in the case
of a Bearer Security, by transfer to an account maintained by the payee with a
bank located outside the United States. Unless otherwise provided as
contemplated by Section 301, every permanent global Security will provide that
interest, if any, payable on any Interest Payment Date will be paid to DTC,
Euroclear and/or CEDEL, as the case may be, with respect to that portion of such
permanent global Security held for its account by Cede & Co. or the Common
Depositary, as the case may be, for the purpose of permitting such party to
credit the interest received by it in respect of such permanent global Security
to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date 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.
Except as otherwise specified with respect to a series of Debt Securities
in accordance with the provisions of Section 301, any interest on any Registered
Security of any series that 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 registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the persons in whose names the Registered Debt Securities of such series
(or their respective
31
Predecessor Debt 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 (which shall not be less than 20 days after such notice
is received by the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Debt Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Debt Securities of
such series) 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 on or prior to the date of
the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Registered Debt
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. The
Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in an
Authorized Newspaper in each Place of Payment, but such publications
shall not be a condition precedent to the establishment of such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the persons in whose names the
Registered Debt Securities of such series (or their respective
Predecessor Debt Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of payment for such
series in exchange for a Registered Security of such series after the
close of business at such office or agency on 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
proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the registered Security
issued in exchange for such Bearer Security, but will be payable only to
the Holder of such coupon when due in accordance with the provisions of
this Indenture.
(2) The company may make payment of any Defaulted Interest on the
Registered Debt Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Debt Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the
32
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 and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. 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 Security for the purpose
of receiving payment of principal of (and premium, if any), and (subject to
Sections 305 and 307) 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.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder of any Bearer Security and the Holder of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.
SECTION 309. CANCELLATION. All Debt Securities and coupons surrendered
for payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Debt Securities and coupons surrendered directly to the Trustee for
any such purpose shall be promptly canceled by it. The Company may any time
deliver to the Trustee for cancellation any Debt 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 Debt Securities previously
authenticated hereunder which the Company has not issued and sold,
33
and all Debt Securities so delivered shall be promptly canceled by the
Trustee. If the Company shall so acquire any of the Debt Securities,
however, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Debt Securities unless and until the
same are surrendered to the Trustee for cancellation. No Debt Securities
shall be authenticated in lieu of or in exchange for any Debt Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. Canceled Debt Securities and coupons held by the Trustee shall be
destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Company, unless by a Company Order the Company directs
their return to it.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 301 with respect to Debt Securities of any series,
interest on the Debt Securities of each series shall be computed on the basis of
a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall upon Company Request cease to be of further effect with respect to any
series of Debt Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Debt Securities of
such series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1005), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(A) all Debt Securities of such series theretofore authenticated and
delivered and all counts, if any, appertaining thereto (other than (i) coupons
appertaining to Bearer Debt Securities surrendered for exchange for Registered
Debt Securities and maturing after such exchange, whose surrender is not
required or has been waived as provided in Xxxxxxx 000, (xx) Debt Securities and
coupons of such series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Xxxxxxx 000, (xxx) coupons appertaining to
Debt Securities called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 1106, and (iv) Debt
Securities and coupons of such series 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 1003) have been delivered to the Trustee for cancellation; or
(B) all Debt Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
34
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount in the currency or currencies, currency unit or units or
composite currency or currencies in which the Debt Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness on such Debt
Securities and such coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, and any
Additional Amounts with respect thereto, to the date of such deposit (in the
case of Debt Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company 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 as to
such series have been complied with. Notwithstanding the satisfaction and
discharge of this Indenture, the obligations of the Company to the Trustee and
any predecessor Trustee under Section 606, the obligations of the Company to any
Authenticating Agent under Section 611 and, if money shall have been deposited
with and held by the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the provisions of the
last paragraph of Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Debt 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 be Persons
entitled thereto, of the principal (and premium, if any), and any interest and
Additional Amounts for whose payment such money has been deposited with or
received by the Trustee, but such money need not be segregated from other funds
except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default," wherever used herein
with respect to any particular series of Debt Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body);
35
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series or of any coupon
appertaining thereto, when such interest, Additional Amounts or coupon becomes
due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of any principal of (or premium, if any,
on) any Security of that series when it becomes due and payable at its Maturity;
or
(3) default in the deposit of any sinking fund payment when and as
due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Security of that
series (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with), 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 at least 25% in principal amount
of the Outstanding Debt Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) if any event of default under any bond, debenture, note or other
evidence of indebtedness of the Company (including an event of default with
respect to any other series of Debt Securities), or under any mortgage,
indenture or other instrument of the Company under which there may be issued or
by which there may be secured or evidenced any indebtedness of the Company (or
by any Subsidiary, the repayment of which the Company has guaranteed or for
which the Company is directly responsible or liable as obligor or guarantor),
whether such indebtedness now exists or shall hereafter be created, shall happen
and shall result in an aggregate principal amount exceeding $20,000,000 becoming
or being declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness having been discharged,
or such acceleration having been waived, rescinded or annulled, within a period
of 10 days after there shall have been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 10% in principal amount of the Outstanding Debt Securities of that
series a written notice specifying such default and requiring the Company to
cause such indebtedness to be discharged or cause such indebtedness to be
discharged or cause such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder. Subject to the provisions
of Section 601, the Trustee shall not be deemed to have knowledge of such
default unless either (A) a Responsible Officer of the Trustee shall have actual
knowledge of such default of (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 under any such mortgage, indenture or other
instrument; or
(6) the Company or any Significant Subsidiary of the Company pursuant
to or within the meaning of any Bankruptcy Law;
36
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary of the Company in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary of the Company or for all or substantially all of its property,
or
(C) orders the liquidation of the Company or any Significant
Subsidiary of the Company, and the order or decree remains unstayed and in
effect for 90 days; or
(8) any other Event of Default provided with respect to Debt
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S. Code
or any similar Federal or State law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default with respect to Debt Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of that series may declare the principal (or, if any Debt Securities
are Original Issue Discount Debt Securities or Indexed Debt Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Debt 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 the Holders), and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to Debt
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 Debt Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if:
37
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in which
the Debt Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Debt Securities of such series):
(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Debt Securities of that
series and any related coupons,
(B) the principal of (and premium, if any, on) any Outstanding
Debt Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates borne
by or provided for in such Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any Additional Amounts
at the rate or rates borne by or provided for in such Debt Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Debt Securities of that series,
other than the nonpayment of the principal of (or premium, if any) or interest
on Debt Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that if:
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Security of any series and any related coupon
when such interest or Additional Amounts becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security of any series at its Maturity, then the Company will,
upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders
of such Debt Securities of such series and coupons, the whole amount then due
and payable on such Debt Securities and coupons for principal (and premium, if
any) and interest and Additional Amounts; with interest upon any overdue
principal (and premium, if any) and, to the extent that payment of such interest
shall be legally enforceable, upon any overdue installments of interest or
Additional Amounts, if any, at
38
the rate or rates borne by or provided for in such Debt 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 the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities of such
series and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Debt Securities of such series, wherever situated.
If an Event of Default with respect to Debt 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 Debt Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and force 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 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Debt Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Debt Securities of any series shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment
of overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such lesser amount
as may be provided for in the Debt Securities of such series, of principal (and
premium, if any) and interest and Additional Amounts, if any, owing and unpaid
in respect of the Debt Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable composition, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) 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 of Debt Securities of such series and coupons 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
39
due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee and any predecessor Trustee, their agents predecessor
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Debt Securities or coupons or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES OR COUPONS. All rights of action and claim under this Indenture or
any of the Debt Securities or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Debt 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 Debt Securities and coupons in respect of which such judgment has been
recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. 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 premium, if any) or interest and any
Additional Amounts, upon presentation of the Debt Securities or coupons, or
both, as the case may be, 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 and any predecessor
Trustee under Section 606;
SECOND: To the payment of amounts then due and unpaid to the holders of
the Senior Indebtedness, to the extent required by Article XVII;
THIRD: To the payment of the amounts then due and unpaid upon the Debt
Securities and coupons for principal (and premium, if any) and interest and any
Additional Amounts payable, 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 aggregate amounts due and payable on such Debt Securities and
coupons for principal (and premium, if any), interest and Additional Amounts,
respectively; and
FOURTH: To the payment of the remainder, if any, to the Company.
SECTION 507. LIMITATION ON SUITS. No Holder of any Security of any series
or any related coupon shall have any rights to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
40
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Debt Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Debt Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whether 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 such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM,
IF ANY, AND INTEREST AND ADDITIONAL AMOUNTS. Notwithstanding any other
provision in this Indenture, the Holder of any Security or coupon shall have the
right which is absolute and unconditional to receive payment of the principal of
(and premium, if any) and (subject to Sections 305 and 307) interest on, and any
Additional Amounts in respect of, such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders of Debt Securities and coupons shall, subject to any determination in
such proceeding, 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 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Debt Securities or coupons in the last paragraph of Section 306, no right
or remedy herein conferred upon or
41
reserved to the Trustee or to the Holders of Debt Securities or coupons is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Security or coupon 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 of Debt Securities or coupons, as
the case may be.
SECTION 512. CONTROL BY HOLDERS OF DEBT SECURITIES. The Holders of not
less than a majority in principal amount of the Outstanding Debt 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 Debt Securities
of such series, PROVIDED that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Debt
Securities of such series not joining therein.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of any series
may on behalf of the Holders of all the Debt Securities of such series and any
related coupons waive any past default hereunder with respect to such series and
its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or interest on
or Additional Amounts payable in respect of any Security of such series or any
related coupons, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such
42
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of any undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable cost, including
reasonable attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence of
any default hereunder with respect to the Debt Securities of any series, the
Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; PROVIDED, HOWEVER, that, except in the
case of a default in the payment of the principal of (or premium, if any) or
interest on or any Additional Amounts with respect to any Security interest on
or any Additional Amounts with respect to any Security of such series, or in the
payment of any sinking or purchase fund installment with respect to the Debt
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
of the Debt Securities and coupons of such series; and PROVIDED FURTHER that in
the case of any default or breach of the character specified in Section 501(4)
with respect to the Debt Securities and coupons of such series, no such notice
to Holders shall be given until at least 60 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 the Debt Securities of such series.
43
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of TIA
Section 315(a) through 315(d):
(1) 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 or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(3) 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;
(4) the Trustee may consult with counsel and the 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;
(5) the Trustee shall be under no obligation to exercise an or the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders of Debt Securities of any series or any related coupons pursuant to
this Indenture, unless such Holders shall have offered to the Trustee security
or indemnity reasonably satisfactory to the Trustee against the costs, expenses
and liabilities which might be incurred by it in compliance with such request or
direction;
(6) 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 or other paper or documents, 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;
(7) 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; and
44
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT SECURITIES.
The recitals contained herein and in the Debt Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Debt Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Debt
Securities and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Debt Securities or the proceeds thereof.
SECTION 604. MAY HOLD DEBT SECURITIES. The trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of Debt
Securities and coupons and, subject to TIA Section 310(b) and 311, may otherwise
deal with the Company with the same rights would have if it were not Trustee,
Paying Agent, Security Registrar, Authenticating Agent or such other agent.
SECTION 605. 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 in writing with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse each of
the Trustee and any predecessor 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
45
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for, and
to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its own 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.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under applicable Federal or state bankruptcy, insolvency or other
similar law.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Debt Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (or premium, if any) or interest
on particular Debt Securities or any coupons.
The provision of this Section shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1 and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirement of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in this 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.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) 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 609.
(b) The Trustee may resign at any time with respect to the Debt Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee 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.
46
(c) The Trustee may be removed at any time with respect the Debt
Securities of any series by Act of the Holders of a majority in the principal
amount of the Outstanding Debt Securities of such series delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA Section
310(b) after written request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 607(a) and shall
fail to resign after written request therefor by the Company or by any Holder of
Security who has been a bona fide Holder of a Security for at least six months,
or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all Debt
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security 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 Debt Securities
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of action,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Debt Securities of one or more series, the Company, by or pursuant to a
Board Resolution, shall promptly appoint successor Trustee or Trustees with
respect to the Debt Securities of that or those series (it being understood that
any successor Trustee may be appointed with respect to the Debt Securities of
that or those series (it being understood that any such successor Trustee may be
appointed with respect to the Debt 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
Debt Securities of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt 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, become the successor Trustee with respect to the
Debt Securities of such series to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the Debt
Securities of any series shall have been so appointed by the Company or the
Holders of Debt Securities and accepted appointed in the manner hereinafter
provided, any Holder of a Security 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 Debt Securities of such
series.
47
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series in the manner provided for notices to the Holders of Debt Securities in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Debt Securities of such series and the address of its Corporate
Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Debt
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation of 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 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, subject nevertheless to its lien and claim, if any, provided
for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, 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 Debt 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 Debt 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
Debt 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 Debt 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 Debt
Securities of that or those series to which the appointment of such successor
Trustee relates.
48
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in confirming to
such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 610. 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 of 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 Debt Securities or coupons 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 Debt Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Debt Securities or coupons. In case any Debt Securities or
coupons shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Debt Securities or coupons,
in either its own name or that of its predecessor Trustee, with the full force
and effect which this Indenture provides for the certificate of authentication
of the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any time when any of
the Debt Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Debt
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Debt Securities of such series issued upon exchange, registration
of transfer or partial redemption thereof, and Debt Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder. Any
such appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Company. Wherever references is made n this Indenture to the
authentication and delivery of Debt Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and, except as may otherwise be provided pursuant to Section 301, shall
at all times be a bank or trust company or corporation organized and doing
business and in good standing under the laws of the United States of America or
of any State or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirement of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In
49
case at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversation or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Debt Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Debt Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Debt Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Debt Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
[____________________], as Trustee
By ____________________________
as Authenticating Agent
50
By ____________________________
as Authorized Signature
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every Holder
of Debt 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
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Debt Securities in accordance with TIA Section
312, regardless of the source from which information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
SECTION 702. REPORTS BY TRUSTEE. Within 60 days after May 15 of each year
commencing with the first May 15 after the first issuance of Debt Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of
Debt Securities as provided in TIA Section 313(c) a brief report dated as of
such May 15 if required by TIA Section 313(a).
SECTION 703. REPORTS BY COMPANY. The Company will:
(1) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents, and other reports (or copies of such portions of any
of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information,
documents or reports pursuant to either of such Sections, then it will file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
51
(3) transmit by mail to the Holders of Debt Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and (2)
of this Section as may be required by rules and regulations prescribed from time
to time by the Commission.
SECTION 704. 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 later than 15 days after the Regular Record Date
for interest for each series of Debt Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Registered Debt Securities of such series as of such Regular Record Date, or if
there is no Regular Record Date for interest for such series of Debt Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, 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,
PROVIDED, HOWEVER, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES, LEASES
AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Company will
not, in any transaction or series of related transactions, consolidate with,
or sell, lease, assign, transfer or otherwise convey all or substantially all
of its assets to, or merge with or into any other Person unless (i) either
the Company shall be the continuing corporation, or the successor Person (if
other than the Company) formed by or resulting from any such consolidation or
merger or which shall have received the transfer of such assets is a
corporation organized and existing under the laws of the United States or a
State thereof or the District of Columbia and shall expressly assume by
supplemental indenture complying with Article Nine hereof, satisfactory to
the Trustee, and executed and delivered to the Trustee by such corporation,
the due and punctual payment of the principal of (and premium, if any) and
interest, if any, on and all Additional Amounts, if any, payable in respect
of, all of the outstanding Debt Securities, according to their tenor, and the
due and punctual performance and observance of all of the other covenants and
conditions contained in the Outstanding Debt Securities and this Indenture and
(ii) immediately after giving effect to such transaction and treating any
Debt (including Acquired Debt) which becomes an obligation of the Company or
any of its Subsidiaries as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no
52
Event of Default, and no event which, after notice or the lapse of time, or
both, would become an Event of Default, shall have occurred and be
continuing. In the event that the Company is not continuing corporation,
then, for the purposes of clause (ii) of the preceding sentence, the referred
to in such clause (ii).
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein as the party of
the first part, and the predecessor corporation, except in the event of a lease,
shall be relieved of any further obligation under this Indenture and the Debt
Securities. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Debt Securities issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such
successor corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Debt Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Debt Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Debt Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debt Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Debt Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the Debt
Securities thereafter to be issued as may be appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor corporation,
complies with the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without
the consent of any Holders of Debt Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Debt Securities contained; or
53
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Debt Securities (and if such covenants are to be for the
benefit of less than all series of Debt Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders
of all or any series of Debt Securities (and if such Events of Default are to be
for the benefit of less than all series of Debt Securities, stating that such
Events of Default are expressly being included solely for the benefit of such
series); PROVIDED, HOWEVER, that in respect of any such additional Events of
Default such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such default or
may limit the right of the Holders of a majority in aggregate principal amount
of that or those series of Debt Securities to which additional Events of Default
apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture to provide
that Bearer Debt Securities may be registrable as to principal, to change or
eliminate any restriction on the payment of principal of or any premium or
interest on Bearer Debt Securities, to permit Bearer Debt Securities to be
issued in exchange for Registered Debt Securities, to permit Bearer Debt
Securities to be issued in exchange for Bearer Debt Securities of other
authorized denominations or to permit or facilitate the issuance of Debt
Securities in uncerficated form, PROVIDED that any such action shall not
adversely affect the interests of the Holders of Debt Securities of any series
or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
PROVIDED that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(6) to secure the Debt Securities; or
(7) to establish the form or terms of Debt Securities of any series and
any related coupons as permitted by Sections 201 and 301, including the
provisions and procedures providing for the adjustment of conversion rights
pursuant to Section 1607 with respect to Debt Securities convertible into common
Shares and as otherwise contemplated by Section 1613 with respect to Debt
Securities convertible into Preferred Shares; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Debt 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; or
(9) 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 which shall not be inconsistent with
54
the provisions of this Indenture, PROVIDED such provisions shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the defeasance and discharge of
any series of Debt Securities pursuant to Sections 401, 1402 and 1403; PROVIDED
that any such action shall not adversely affect the interests of the Holders of
Debt Securities of such series and any related coupons or any other series of
Debt Securities in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Debt Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of Debt
Securities and any related coupons under this Indenture; PROVIDED, HOWEVER, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if any,
on) or any installment of principal of or interest on, any Security; or reduce
the principal amount thereof or the rate or amount of interest thereon or any
Additional Amounts payable in respect thereof, or any premium payable upon the
redemption thereof, or change any obligation of the Company to pay Additional
Amounts pursuant to Section 1005 (except as contemplated by Section 801 and
permitted by Section 901), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the amount
thereof provable in bankruptcy pursuant to Section 504, or adversely affect any
right of repayment at the option of the Holder of any Security, or change any
Place of Payment where, or the currency or currencies, currency unit or units or
composite currency or currencies in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption or repayment at the option of the Holder, on or after the
Redemption Date or the Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the Outstanding Debt
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 with respect to such series (or compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section, Section 513, or Section
1005 except to increase the percentage required to effect such action 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; or
55
(4) subordinate the indebtedness evidenced by the Debt Securities to any
indebtedness of the Company other than Senior Indebtedness.
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.
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 Debt Securities, or which modifies
the rights of the Holders of Debt 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 Debt Securities of any other series.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. 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 Debt Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL INDENTURES.
Debt 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 Debt 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 Debt Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, INTEREST AND
ADDITIONAL AMOUNTS. The Company covenants and agrees for the benefit of the
Holders of each series of Debt Securities that it will duly and punctually pay
the principal of (and premium, if any) and
56
interest on and any Additional Amounts payable in respect of the Debt
Securities of that series in accordance with the terms of such series of Debt
Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series
of Debt Securities, any interest due on and any Additional Amounts payable in
respect of Bearer Debt Securities on or before Maturity, other than
Additional Amounts, if any, payable as provided in Section 1005 in respect of
principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless
otherwise specified with respect to Debt Securities of any series pursuant to
Section 301, at the option of the Company, all payments of principal may be
paid by check to the registered Holder of the Registered Security or other
person entitled thereto against surrender of such Security.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If Debt Securities of a
series are issuable only as Registered Debt Securities, the Company shall
maintain in each Place of Payment for any series of Debt Securities an office or
agency where Debt Securities of that series may be presented or surrendered for
payment or conversion, where Debt Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Debt Securities of that series and this
Indenture may be served. If Debt Securities of a series are issuable as Bearer
Debt Securities, the Company will maintain: (A) in [the Borough of Manhattan,
The City of New York], an office or agency where any Registered Debt Securities
of that series may be presented or surrendered for payment or conversion, where
any Registered Debt Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Company in
respect of the Debt 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 Debt Securities of that
series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Debt Securities of that
series pursuant to Section 1005) or conversion; PROVIDED, HOWEVER, that if the
Debt Securities of that series are listed on 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 Debt
Securities of that series in Luxembourg or any other required city located
outside the United States, as the case may be, so long as the Debt 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 Debt
Securities of that series may be surrendered for registration of transfer, where
Debt Securities of that series may be surrendered for exchange and where notices
and demands to or upon the Company in respect of the Debt 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 each
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 Debt
Securities of that series and the related coupons may be presented and
surrendered for payment (including
57
payment of any Additional Amounts payable on Bearer Debt Securities of that
series pursuant to Section 1005) at the offices specified in the Security, in
[London, England], and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands, and
the Company hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Debt Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Debt 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; PROVIDED, HOWEVER, that, if the Debt Securities of a series
are payable in Dollars, payment of principal of any premium and interest on any
Bearer Security (including any Additional Amounts payable in respect of Debt
Securities of such series pursuant to Section 1005) 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, interest or Additional Amounts, as the case may be, at all offices or
agencies outside the Untied States maintained for the purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other offices or
agencies where the Debt Securities of one or more series may be presented or
surrendered for any or all of 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 accordance with the requirements set forth above for Debt
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. Unless otherwise
specified with respect to any Debt Securities pursuant to Section 301 with
respect to a series of Debt Securities, the Company hereby designates as a Place
of Payment for each series of Debt Securities the office or agency of the
Company in [the Borough of Manhattan, The City of New York], and initially
appoints the Trustee at its Corporate Trust Office as Paying Agent in such city
and its agent to receive all such presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Debt Securities pursuant to
Section 301, if and so long as the Debt Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency
other than Dollars, or so long as it is required under any other provision of
the Indenture, then the Company will maintain with respect to each such series
of Debt Securities, or as so required, at least one exchange rate agent.
SECTION 1003. MONEY FOR DEBT 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 any Debt Securities and any related coupons, it will, on or before
each due date of the principal of (and premium, if any), or interest on ore
Additional Amounts in respect of, any of the Debt Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum in the currency or currencies, currency unit or units or composite currency
or currencies in which the Debt Securities of such series are payable (except as
otherwise specified pursuant to Section
58
301 for the Debt Securities of such series) sufficient to pay the principal
(and premium, if any) or interest or Additional Amounts 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
Debt Securities and any related coupons, it will, on or before each due date of
the principal of (and premium, if any), or interest on or Additional Amounts in
respect of, any Debt Securities of that series, deposit with a Paying Agent a
sum (in the currency or currencies, currency unit or units or composite currency
or currencies described in the preceding paragraph) sufficient to pay the
principal (and premium, if any) or interest or Additional Amounts, so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest or Additional Amounts 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 other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for the payment of principal of (and premium,
if any) or interest on Debt Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Debt Securities) in the making of any such payment of principal
(and premium, if any) or interest; and
(3) at any time during the continuance of any such default upon the
written request of the trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as otherwise provided in the Debt Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or
interest on, or any Additional Amounts in respect of, any Security of any series
and remaining unclaimed for two years after such principal (and premium, if
any), interest or Additional Amounts has become due and payable shall be paid to
the Company upon Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment of such
principal of (and premium, if any) or interest on, or any Additional Amounts in
respect of, any Security, without interest thereon, and all liability of the
59
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 notice to be mailed to the
holders of such Debt Securities or published once, in an Authorized Newspaper,
to the effect 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 mailing or
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. EXISTENCE. Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and statutory) and
franchises; PROVIDED, HOWEVER, that the Company will not be required to
preserve any right or franchise if it determines that the preservation
thereof is no longer desirable in the conduct of its business and that the
loss thereof is not disadvantageous in any material respect to the Holders of
the outstanding Debt Securities.
SECTION 1005. MAINTENANCE OF PROPERTIES. The Company will cause all of
its 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 or any Subsidiary from selling or otherwise disposing of for value its
properties in the ordinary course of its business.
SECTION 1006. INSURANCE. The Company will, and will cause each of its
Subsidiaries to, keep all of their respective insurable properties insured
against loss or damage in amounts at least equal to their then full insurable
value with financially sound and reputable insurance companies; provided that
neither the Company nor any of its Subsidiaries shall be required to maintain
earthquake insurance coverage with respect to any property so long as (i) the
Board of Directors of the Company reasonably determines (as evidenced by a
resolution delivered to the Trustee) that earthquake insurance coverage for such
property is not available on commercially reasonable terms, and (ii) not less
frequently than every three months thereafter, the Board of Directors of the
Company reasonably determines (as evidenced by a resolution delivered to the
Trustee) that earthquake insurance coverage for such property is not available
on commercially reasonable terms. In the event that the obligation to maintain
earthquake insurance coverage with respect to any property shall have been
suspended pursuant to the proviso to the preceding sentences but the Company
shall thereafter fail to comply with its obligations under clause (ii) of such
proviso (including, without limitation, because the Board of Directors shall
have determined that earthquake coverage is available on commercially reasonable
terms), then the obligation to maintain earthquake insurance coverage with
respect to such property shall be immediately and automatically reinstated,
subject to the right of the Company thereafter to cause such obligation to again
be suspended by complying with the terms of such proviso.
SECTION 1007. 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 it or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (2) all lawful claims
60
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.
SECTION 1008. PROVISION OF FINANCIAL INFORMATION. Whether or not the
Company is subject to Section 13 or 15(d) of the Securities Exchange Act of
1934, the Company will, to the extent permitted under the Securities
Exchange Act of 1934, file with the Commission the annual reports, quarterly
reports and other documents which the Company would have been required to file
with the Commission pursuant to such Section 13 or 15(d) (the "Financial
Statements") if the Company were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Company would have been required so to file such documents if the
Company were so subject.
The Company will also in any event (x) within 15 days of each Required
Filing Date (i) transmit by mail to all Holders, as their names and addresses
appear in the Debt Security Register, without cost to such Holders copies of
the annual reports and quarterly reports which the Company would have been
required to file with the Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 if the Company were subject to such Sections,
and (ii) file with the Trustee copies of the annual reports, quarterly
reports and other documents which the Company would have been required to
file with the Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 if the Company were subject to such Sections and (y) if
filing such documents by the Company with the Commission is not permitted
under the Securities Exchange Act of 1934, promptly upon written request and
payment of the reasonable cost of duplication and delivery, supply copies of
such documents to any prospective Holder.
SECTION 1009. STATEMENT AS TO COMPLIANCE. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture and, in the event of any
noncompliance, specifying such noncompliance and the nature and status thereof.
For purposes of this Section 1006, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 1010. ADDITIONAL AMOUNTS. If any Debt Securities of a series
provide for the payment of Additional Amounts, the Company will pay to the
Holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301. Whenever
in this Indenture there is mentioned, in any context except in the case of
section 502(1), the payment of the principal of or any premium or interest on,
or in respect of, any Security of any series or payment of any related coupon or
the net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established pursuant to Section 301
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention of
61
the payment of Additional Amounts (if applicable) in any provisions hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the Debt
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Debt Securities (or if the Debt Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal and any premium
is made), and at least 10 days prior to each date of payment of principal and
any premium or interest if here has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company will furnish
the Trustee and the Company's principal Paying Agent or Paying Agents, if other
than the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of any premium
or interest on the Debt Securities of that series shall be made to Holders of
Debt Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Debt Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Debt Securities of that series or related coupons and the Company
will pay to the Trustee or such Paying Agent the Additional Amounts required by
the terms of such Debt Securities. In the event that the trustee or any paying
Agent, as the case may be, shall not so receive the above-mentioned certificate,
then the Trustee or such Paying agent shall be entitled (i) to assume that no
such withholding or deduction is required with respect to any payment of
principal or interest with respect to any Debt Securities of a series or related
coupons until it shall have received a certificate advising otherwise and (ii)
to make all payments of principal and interest with respect to the Debt
Securities of a series or related coupons without withholding or deductions
until otherwise advised. The Company covenants to indemnify the Trustee and any
paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them or
in reliance on any Officers' Certificate furnished pursuant to this Section or
in reliance on the Company's not furnishing such an Officer's Certificate.
SECTION 1011. WAIVER OF CERTAIN COVENANTS. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1004 to 1010, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Debt Securities of such series, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant 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 ELEVEN
62
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Debt 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 301 for Debt Securities of any series) in accordance with this
Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of the
Company to redeem any Debt Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of
less than all of the Debt Securities of any series, the Company shall, at least
45 days prior to the giving of the notice of redemption referred to in Section
1104 (unless a shorter notice shall be satisfactory to the trustee), notify the
Trustee of such Redemption Date and of the principal amount of Debt Securities
of such series to be redeemed. In the case of any redemption of Debt Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Debt Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance with
such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE REDEEMED. If
less than all the Debt Securities of any series issued on the same day with the
same terms are to be redeemed, the particular Debt Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Debt Securities of such series issued on such date
with the same terms not previously called for redemption (excluding any such
Outstanding Debt Securities held by the Company or any of its Subsidiaries), 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 Debt Securities of that series or any integral multiple
thereof) of the principal amount of Debt Securities of such series of a
denomination larger than the minimum authorized denomination for Debt Securities
of that series.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Debt Securities selected for redemption
and, in the case of any Debt 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 Debt Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall be given
in the manner provided in section 106, not less than 30 days nor more than 60
days prior to the Redemption Date, unless a shorter period is specified by the
terms of such series established pursuant to Section 301, to each Holder of Debt
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for
63
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall to affect the validity of the proceedings for the redemption of
any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Debt Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption Date payable
as provided in Section 1106, if any, and Additional Amounts, if any,
(3) if less than all Outstanding Debt Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Debt Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice which
relates to such Security shall state that on and after the Redemption Date, upon
surrender of such Security, the holder will receive, without a charge, a new
Security or Debt Securities of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued interest
to the Redemption Date payable as provided in Section 1106, if any, will become
due and payable upon each such Security, or the portion thereof, to be redeemed
and, if applicable, that interest thereon shall cease to accrue on and after
said date,
(6) the Place or Places of Payment where such Debt Securities, together in
the case of Bearer Debt Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment of
the redemption Price and accrued interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Debt
Securities of any series, if any, surrendered for redemption must be accompanied
by all coupons 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, unless security or indemnity satisfactory to the Company, the
Trustee for such series and any Paying Agent is furnished,
(9) if Bearer Debt Securities of any series are to be redeemed and any
Registered Debt Securities of such series are not to be redeemed, and if such
Bearer Debt Securities may be exchanged for Registered Debt Securities not
subject to redemption on this Redemption date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such exchanges
may be made,
64
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Debt Securities who desires to convert
Debt Securities for redemption must satisfy the requirements for conversion
contained in such Debt Securities the then exiting conversion price or rate, and
the date and time when the option to convert shall expire.
Notice of redemption of Debt Securities to be redeemed shall be given
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. At or prior to 10:00 a.m.
on any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, which it may
not do in the case of a sinking fund payment under Article Twelve, segregate and
hold in trust as provided in Section 1003) an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Debt Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Debt Securities of such series) sufficient to
pay on the Redemption Date the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Debt Securities or portions thereof which are to be redeemed on that date.
SECTION 1106. DEBT SECURITIES PAYABLE ON REDEMPTION DATE Notice of
redemption having been given as aforesaid, the Debt Securities so to be redeemed
shall, on the redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Debt Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the Debt
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Debt
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Debt Securities so to
be redeemed, except to the extent provided below, shall be void. Upon surrender
of any such Security for redemption in accordance with said notice, together
with all coupons, if any, appertaining thereto maturing after the Redemption
Date, such Security shall be paid by the company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; PROVIDED,
HOWEVER, that installments of interest on Bearer Debt Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States (except as otherwise provided
in Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of coupons for such interest; and PROVIDED
FURTHER that, except as otherwise provided with respect to Debt Securities
convertible into Common Shares or Preferred Shares, installments of interest on
Registered Debt Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holder of such Debt Securities, or one
or more Predecessor Debt Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the provisions of
Section 307.
65
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons 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, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 1107 DEBT SECURITIES REDEEMED IN PART. Any registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge a new Security or
Debt Securities of the same series, of any authorized denomination as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
SECTION 1108. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In
connection with any redemption of Debt Securities, the Company may arrange for
the purchase and conversion of any Debt Securities called for redemption by an
agreement with one or more investment bankers or other purchasers to purchase
such Debt Securities by paying to the Trustee or the Paying Agent in trust for
the Holders of Debt Securities, on or before 10:00 a.m. [New York], time on the
Redemption Date, an amount not less than the Redemption Price, together with
interest, if any, accrued to the Redemption Date of such Debt Securities, in
immediately available funds. Notwithstanding anything to the contrary continued
in this Article Eleven, the obligation of the Company to pay the Redemption
Price of such Debt Securities, including all accrued interest, if any, shall be
deemed to be satisfied and discharged to the extent such amount is so paid by
such purchasers. If such an agreement is entered into, any Debt Securities not
duly surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and surrendered by such purchasers for conversion,
all as of immediately prior to the close of business on the last day on which
Debt Securities of such series called for redemption may be converted in
accordance with this Indenture and the terms of such Debt Securities, subject to
payment to the Trustee or Paying Agent of the above-described amount. The
Trustee or the Paying Agent shall hold and pay to the Holders whose Debt
Securities are selected for
66
redemption any such amount paid to it in the same manner as it would pay
moneys deposited with it by the Company for the redemption of Debt
Securities. Without the Trustee's and the Paying Agent's prior written
consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Debt Securities shall increase or otherwise
affect any of the powers, duties, responsibilities or obligations of the
Trustee and the Paying Agent as set forth in this Indenture, and the Company
agrees to indemnify the Trustee and the Paying Agent from, and hold them
harmless against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purpose and conversion or any
Debt Securities between the Company and such purchasers, including the costs
and expenses incurred by the Trustee and the Paying Agent (including the fees
and expenses of their agents and counsel) in the defense of any claim or
liability arising out of or in connection with the exercise or performance of
any of their powers, duties, responsibilities or obligations under this
Indenture.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Debt
Securities of a series except as otherwise specified as contemplated by Section
301 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt 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 such Debt Securities of any series is herein referred to as
an "optional sinking fund payment". If provided for by the terms of any Debt
Securities of any series, the cash amount of any mandatory sinking fund payment
may be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Debt Securities of any series as
provided for by the terms of Debt Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH DEBT
SECURITIES. The Company may, in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Debt Securities of as series,
(1) deliver Outstanding Debt Securities of such series (other than any
previously called for redemption) together in the case of any Bearer Debt
Securities of such series with all unmatured coupons appertaining thereto and
(2) apply as a credit Debt Securities of such series which have been redeemed
wither at the election of the Company pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking fund payment
pursuant to the terms of such Debt Securities, as provided for by the terms of
such Debt Securities; PROVIDED that such Debt Securities so delivered or applied
as a credit have not been previously so credited. Such Debt Securities shall be
received and credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Debt Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
67
SECTION 1203. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND. Not
less than 60 days prior to each sinking fund payment date for Debt Securities of
any series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory 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 in the currency or currencies,
currency unit or units or composite currency or currencies in which the Debt
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Debt Securities of such series) and the portion thereof, if
any, which is to be satisfied by delivering and crediting Debt Securities of
that series pursuant to Section 1202, and the optional amount, if any, to be
added in cash to the next ensuing mandatory sinking fund payment, and will also
deliver to the trustee any Debt Securities to be so delivered and credited. If
such Officers' Certificate shall specify an optional amount to be added in cash
to the next ensuing mandatory sinking fund payment, the Company shall thereupon
be obligated to pay the amount therein specified. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Debt Securities
to be redeemed upon such sinking fund payment date in the manner specified in
Section 1103 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 1104.
Such notice having been duly given, the redemption of such Debt Securities shall
be made upon the terms and in the manner stated in Section 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of Debt Securities of
any series before their Stated Maturity at the option of Holders thereof shall
be made in accordance with the terms of such Debt Securities, if any, and
(except as otherwise specified by the terms of such series established pursuant
to Section 301) in accordance with this Article.
SECTION 1302. REPAYMENT OF DEBT SECURITIES. Debt Securities of any series
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Debt Securities, be repaid
at a price equal to the principal amount thereof, together with interest, if
any, thereon accrued to the Repayment Date specified in or pursuant to the terms
of such Debt Securities. The Company covenants that at or prior to 10:00 a.m.
on the Repayment Date it will 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 1003) an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Debt Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Debt Securities of such series) sufficient to
pay the principal (or, if so provided by the terms of the Debt Securities of any
series, a percentage of the principal) of, and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest on, all the Debt Securities
or portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION. Debt Securities of any series subject
to repayment at the option of the Holders thereof will contain an "Option to
Elect Repayment" form on the
68
reverse of such Debt Securities. In order for any Security to be repaid at
the option of the Holder, the Trustee must receive at the Place of Payment
therefor specified in the terms of such Security (or at such other place or
places of which the Company shall from time to time notify the Holders of
such Debt Securities) not earlier than 60 days nor later than 30 days prior
to the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof
duly completed by the Holder (or by the Holder's attorney duly authorized in
writing) or (2) a telegram, facsimile transmission or a letter from a member
of a national securities exchange or the National Association of Debt
Securities Dealers, Inc. ("NASD"), or a commercial bank or trust company in
the United States setting forth the name of the Holder of the Security, the
principal amount of the Security, the principal amount of the Security to be
repaid, the CUSIP number, if any, or a description of the tenor and terms of
the Security, a statement that the option to elect repayment is being
exercised thereby and a guarantee that the Security to be repaid, together
with the duly completed form entitled "Option to Elect Repayment" on the
reverse of the Security, will be received by the Trustee not later than the
fifth Business Day after the date of such telegram, facsimile transmission or
letter; PROVIDED, HOWEVER, that such telegram, facsimile transmission or
letter shall only be effective if such Security and form duly completed are
received by the Trustee by such fifth Business Day. If less than the entire
principal amount of such Security is to be repaid in accordance with the
terms of such Security, the principal amount of such Security to be repaid,
in increments of the minimum denomination for Debt Securities of such series,
and the denomination or denominations of the Security or Debt Securities to
be issued to the holder for the portion of the principal amount of such
Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Debt Securities of the series of which such
Security to be repaid is a part. Except as otherwise may be provided by the
terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. WHEN DEBT SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE. If Debt Securities of any series providing for repayment at the option
of the holders thereof shall have been surrendered as provided in this Article
and as provided by or pursuant to the terms of such Debt Securities, such Debt
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Debt Securities on such Repayment Date)
such Debt Securities shall, if the same were interest-bearing, cease to bear
interest and the coupons for such interest appertaining to any Bearer Debt
Securities so to be repaid, except to the extent provided below, shall be void.
Upon surrender of an such Security for repayment in accordance with such
provisions, together with all coupons, if any, appertaining thereto maturing
after the Repayment Date, the principal amount of such Security so to be repaid
shall be paid by the Company, together with accrued interest, if any, to the
Repayment Date; PROVIDED, HOWEVER, that coupons whose Stated Maturity is on or
prior to the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon presentation and
surrender of such
69
coupons; and PROVIDED, FURTHER, that, in the case of Registered Debt
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Company shall default in the payment thereof) to the Holders of
such Debt Securities, or one or more Predecessor Debt Securities, registered
as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; PROVIDED, HOWEVER, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment shall not
be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Debt Securities ) set forth in
such Security.
SECTION 1305. DEBT SECURITIES REPAID IN PART. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Debt Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. If, pursuant to Section 301, provision is
made for either or both of (a) defeasance of the Debt Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Debt Securities of
or within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Debt Securities), shall be applicable to such Debt
Securities and any coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to
70
such Debt Securities and any coupons appertaining thereto, elect to have
Section 1402 (if applicable) or Section 1403 (if applicable) be applied to
such Outstanding Debt Securities and any coupons appertaining thereto upon
compliance with the conditions set forth below in this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Company's exercise of
the above option applicable to this Section with respect to any Debt Securities
of or within a series, the Company shall be deemed to have been discharged from
its obligations with respect to such Outstanding Debt Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Debt Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) of this Section, and to have satisfied all
its other obligations under such Debt Securities and any coupons appertaining
thereto and this Indenture insofar as such Debt Securities and any coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Debt Securities and
any coupons appertaining thereto to receive, solely from the trust fund
described in Section 1404 and as more fully set forth in such Section, payments
in respect of the principal of (and premium, if any) and interest, if any, on
such Debt Securities and any coupons appertaining thereto when such payments are
due; (B) the Company's obligations with respect to such Debt Securities under
Sections 305, 306, 1002 and 1003 and with respect to the payment of Additional
Amounts, if any, on such Debt Securities as contemplated by Section 1005; (C)
the rights, powers, trustees, duties and immunities of the Trustee hereunder;
and (D) this Article. Subject to compliance with this Article Fourteen, the
Company may exercise its option under this Section notwithstanding the prior
exercise of its option under Section 1403 with respect to such Debt Securities
and any coupons appertaining thereto.
SECTION 1403. COVENANT DEFEASANCE. If specified pursuant to Section 301,
upon the Company's exercise of the above option applicable to this Section with
respect to any Debt Securities of or within a series, the Company shall be
released from its obligations under any covenant contained herein (except that
the Company shall remain subject to the covenant to preserve and keep in full
force and effect its corporate existence, except as permitted under Article 8
"Consolidation, Merger, Sale, Lease or Conveyance") with respect to such
Outstanding Debt Securities and any coupons appertaining thereto on and after
the date the conditions set forth in Section 1404 are satisfied (hereinafter,
"covenant defeasance"), and such Debt Securities and any coupons appertaining
thereto shall thereafter be deemed to be not "Outstanding" for the purposes of
any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with any such other covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Debt Securities and any coupons appertaining thereto, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly
71
by reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a default or an Event of Default under Section
501(4) or 501(7) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Debt Securities and any
coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Debt Securities of or within a series and any coupons
appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trustee 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 such Debt
Securities and any coupons appertaining thereto, (1) an amount in such
currency, currencies or currency unit in which such Debt Securities and any
coupons appertaining thereto are then specified as payable at Stated
Maturity, or (2) Government Obligations applicable to such Debt Securities
and coupons appertaining thereto (determined on the basis of the currency,
currencies or currency unit in which such Debt Securities and coupons
appertaining thereto are then specified as payable at Stated Maturity)
which 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 of principal of) (and premium, if any)
and interest, if any, on such Debt Securities and any coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any case, in
an amount, sufficient, without consideration of any reinvestment of such
principal and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest, if any, on such
Outstanding Debt Securities and any coupons appertaining thereto on the
Stated Maturity of such principal or installment of principal or interest
and (ii) any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Debt Securities and any coupons appertaining
thereto on the date on which such payments are due and payable in
accordance with the terms of this Indenture and of such Debt Securities and
any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Event of Default or event which with notice of lapse of time
or both would become an Event of Default with respect to such Debt
Securities and any coupons appertaining thereto shall have occurred and be
continuing on the date of such deposit or,
72
insofar as Sections 501(6) and 501(7) are concerned, at any time during
the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period).
(d) In the case of any election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Debt Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Debt Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Debt Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Debt
73
Securities and any coupons appertaining thereto and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders
of such Debt Securities and any coupons appertaining thereto of all sums due
and to become due thereon in respect of principal (and premium, if any) and
interest and Additional Amounts, if any but such money need not be segregated
from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
301, if, after a deposit referred to in Section 1404(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 301 or the terms of such Security to receive
payment in a currency or currency unit other than that in which the deposit
pursuant to Section 1404(a) has been made in respect of such Security, or (b) a
Conversion Event occurs in respect of the currency or currency unit in which the
deposit pursuant to Section 1404(a) has been made, the indebtedness represented
by such Security and any coupons appertaining thereto shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any), and interest, if any, on such Security as
the same becomes due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the currency or currency
unit in which such Security becomes payable as a result of such election or
Conversion Event based on the applicable market exchange rate for such currency
or currency unit in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such currency or currency
unit in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Debt Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Company from time to time
upon Company request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Debt Securities of any series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent,
74
waiver or other action provided by this Indenture to be made, given or taken
by Holders of Debt Securities of such series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Debt
Securities of any series for any purpose specified in Section 1501, to be
held at such time and at such place in the City of San Francisco,
California, or in [London] as the Trustee shall determine. Notice of every
meeting of Holders of Debt Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Debt
Securities of any series shall have requested the Trustee to call a meeting
of the Holders of Debt Securities of such series for any purpose specified
in Section 1501, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Debt Securities of such series in the amount above specified, as the case
may be, may determine the time and the place in [the Borough of Manhattan,
the City of New York], or [in London] for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders of Debt Securities of any series, a Person shall
be (1) a Holder of one or more Outstanding Debt Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Debt Securities of such series by such Holder
or Holders. The only Persons who shall be entitled to be present or to speak at
any meeting of Holders of Debt Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1504. QUORUM: ACTION: The Persons entitled to vote a
majority in principal amount of the Outstanding Debt Securities of a series
shall constitute a quorum for a meeting of Holders of Debt Securities of such
series; PROVIDED, HOWEVER, that if any action is to be taken at such meeting
with respect to a consent or waiver which this Indenture expressly provides may
be given by the Holders of not less than a specified percentage in principal
amount of the Outstanding Debt Securities of a series, the Persons entitled to
vote such specified percentage in principal amount of the Outstanding Debt
Securities of such series shall constitute a quorum. In the absence of a quorum
within 30 minutes after the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Debt Securities of such series,
be dissolved. In any other case the meeting may be adjourned for a period of
not less than
75
10 days as determined by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any such adjourned meeting,
such adjourned meeting may be further adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 1502(a), except that such
notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening
of any adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Debt Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Debt Securities of that series; PROVIDED,
HOWEVER, that, except as limited by the proviso to Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage which is less than a
majority, in principal amount of the Outstanding Debt Securities of a series may
be adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Debt Securities of
that series.
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Debt Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Debt Securities affected thereby, or of the Holders of such series
and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Debt Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made,
given or taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
76
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting
of Holders of Debt Securities of a series in regard to proof of the holding
of Debt Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the
submissions and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Debt Securities shall be
proved in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104 or by having
the signature of the Person executing the proxy witnessed or guaranteed by
any trust company, bank or banker authorized by Section 104 to certify to
the holding of Bearer Debt Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meting, unless the meeting shall have been called
by the Company or by Holders of Debt Securities as provided in Section
1502(b), in which case the Company or the Holders of Debt Securities of the
series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Debt Securities
of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Debt Securities of such series held or represented by him;
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security of such
series or proxy.
(d) Any meeting of Holders of Debt Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Debt Securities of such series
represented at the meting, and the meeting may be held as to adjourned
without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of Debt Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Debt Securities of such series or of their
representatives by proxy and the principal amounts and serial number of the
Outstanding Debt Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the
77
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record, at least in duplicate, of the proceedings of each meeting
of Holders of Debt Securities of any Series shall be prepared by the
secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of the act,
setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section
1504. Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy shall be
delivered to the Company and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
ARTICLE SIXTEEN
CONVERSION OF SECURITIES
SECTION 1601. APPLICABILITY OF ARTICLE. Debt Securities of any series
which are convertible into Common Stock at the option of the Holder of such Debt
Securities shall be convertible in with their term and (unless otherwise
specified as contemplated by Section 301 for the Debt Securities of any series)
in accordance with this Article. Each reference in this Article Sixteen to "a
Security" or "the Debt Securities" refers to the Debt Securities of the
particular series that is convertible into Common Shares. It more than one
series of Debt Securities with conversion privileges are outstanding at any
time, the provisions of this Article Sixteen shall be applied separately to each
such series.
SECTION 1602. RIGHT OF HOLDERS TO CONVERT DEBT SECURITIES INTO COMMON
SHARES. Subject to and upon compliance with the terms of the Debt Securities
and the provisions of Section 1108 and this Article Sixteen, at the option of
the Holder thereof, any Security of any series of any authorized denomination
which is convertible into Common Shares, or any portion of the principal amount
thereof which is $1,000 or any integral multiple of $1,000, may, at any time
during the period specified in the Debt Securities of such series, or in case
such Security of portion thereof shall have been called for redemption, then in
respect of such Security or portion thereof until and including, but not after
(unless the Company shall default in payment due upon the redemption thereof)
the close of business an the Redemption Date (except that in the case of
repayment at the option of the Holder, if specified in the terms of the relevant
Security, such right shall terminate upon the Company's receipt of written
notice of the exercise of such option), be converted into duly authorized,
validly issued, fully paid and nonassessable Common Shares, as specified in such
Security, at the conversion price or conversion rate for each $1,000 principal
amount of Debt Securities (such initial conversion rate reflecting an initial
conversion price specified in such security) in effect on the conversion date,
or, in case an adjustment in the conversion price has taken place pursuant to
the provisions of this Article Sixteen, then at the applicable conversion price
as so adjusted, upon surrender of the Security or Debt Securities, the principal
amount of which is so to be converted, to the Company at any time during usual
business hours at the office or agency to be maintained by it in accordance with
the provisions of Section 1002, accompanied by a written notice of election to
an provided in Section 1603 and, if so required by the Company and/or the
Trustee, by a written instrument or instruments of transfer
78
in form satisfactory to the Company and/or the Trustee, as applicable, duly
executed by the Holder thereof or his attorney duly authorized in writing.
All Debt Securities surrendered for conversion shall, if surrendered to the
company or any conversion agent, be delivered to the Trustee for cancellation
and canceled by it, or shall, if surrendered to the Trustee be canceled by
it, as provided in Section 310.
The initial conversion price or conversion rate in respect of a series of
Debt Securities shall be as specified in the securities of such series. The
conversion price or conversion rate will be subject to adjustment an the terms
set forth in Section 1605 or such other or different terms, if any, as may be
specified by Section 302 for Debt Securities of such series. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of any portion of it.
SECTION 1603. ISSUANCE OF COMMON SHARES ON CONVERSIONS. As promptly as
practicable after the surrender as herein provided, of any Security or Debt
Securities for conversion into Common shares, the Company shall deliver or cause
to be delivered at its said office or agency to or upon the written order of the
Holder of the Security or Debt Securities so surrendered a certificate or
certificates representing the number of duly authorized, validly issued, fully
paid and nonassessable Common Shares into which such Security or Debt Securities
may be converted in accordance with the terms thereof and the provisions of this
Article Sixteen. Prior to delivery of such certificate or certificates, the
Company shall require written notice at its said office or agency from the
Holder of the security or securities so surrendered stating that the Holder
irrevocably elects to convert such Security or securities, or if less than the
entire principal amount thereof is to be converted, stating the portion thereof
to be converted. Such notice shall also state the name or names (with address
and social security or other taxpayer identification number) in which said
certificate or certificates are to be issued. Such conversion shall be deemed
to have been made at the time that such Security or Debt Securities shall have
been surrendered for conversion and such notice shall have been received by the
Company or the Trustee, the rights of the Holder of such Security or Debt
Securities as a Holder shall cease at such time, the Person or Persons entitled
to receive the Common Shares upon conversion of such Security or Debt Securities
shall be treated for all purposes as having become either record holder or
holders of such common Shares at such time and such conversion shall be at the
conversion price in effect at such time. In the case of any Security of any
series which is converted in part only, upon such conversion, the company shall
execute and, upon the Company's request and at the Company's expense, the
Trustee or an Authenticating Agent shall authenticate and deliver to the Holder
thereof, as requested by such Holder, a new Security or Debt Securities of such
series of authorized denominations in aggregate principal amount equal to the
unconverted portion of such Security.
If the last day on which such Security may be converted is not a Business
Day in a place where the conversion agent for that Security is located, such
Security may be surrendered to that conversion agent on the next succeeding day
that is a Business Day.
The Company shall not be required to deliver certificates for Common Shares
upon conversion while its stock transfer books are closed for a meeting of
shareholders or for the
79
payment of dividends or for any other purpose, but certificates for Common
Shares shall be delivered as soon as the stock transfer books shall again be
opened.
SECTION 1604. NO PAYMENT OR ADJUSTMENT FOR INTEREST OR DIVIDENDS. Unless
otherwise specified as contemplated by Section 301 for Debt Securities of such
for Conversion into Common Shares during the period from the close of business
on any Regular Record Date (or Special Record Date) next preceding any Interest
Payment Date to the opening of business on such Interest Payment Date (except
Debt Securities called for redemption an a Redemption Date within such period)
when surrendered for conversion must be accompanied by payment (by certified or
official bank check to the order of the Company payable in clearing house funds
at the location where the Debt Securities are surrendered) of an amount equal to
the interest thereon to such Interest Payment Date. Payment of interest shall
be made, on such Interest Payment Date or such other payment date (as set forth
in Section 307), as the case may be, to the Holder of the Debt Securities as of
such Regular Record Date or Special Record Date, as applicable. Except where
Debt Securities surrendered for conversion must be accompanied by payment as
described above, no interest on converted securities will be payable by the
Company on any Interest Payment Date subsequent to the date of conversion. No
other payment or adjustment for interest or dividends is to be made upon
conversion. Notwithstanding the foregoing, upon conversion of any Original
Issue Discount Security, the fixed number of Common Shares into which such
Security is convertible delivered by the Company to the Holder thereof shall be
applied, first, to the portion attributable to the accrued original issue
discount relating to the period from the date of issuance to the date of
conversion of such Security, and second, to the portion attributable to the
balance of the principal of such Security.
SECTION 1605. ADJUSTMENT OF CONVERSION PRICE. Unless otherwise specified
as contemplated by Section 301 for Debt Securities of such series, the
conversion price for Debt Securities convertible into Common Shares shall be
adjusted from time to time as follows:
(a) In case the Company shall (x) pay a dividend or make a
distribution on Common Shares in Common Shares, (y) subdivide the
outstanding Common Shares into a greater number of shares or (z) combine
the outstanding Common Shares into a smaller number of shares, the
conversion price for the Debt Securities of such series shall be adjusted
so that the Holder of any such Security thereafter surrendered for
conversion shall be entitled to receive the number of Common Shares which
he would have owned or have been entitled to receive after the happening of
any of the events described above had such Security been converted
immediately prior to the record date in the case of a dividend or the
effective date in the case of subdivision or combination. An adjustment
made pursuant to this subsection (a) shall become effective immediately
after the record date in the case of a dividend, except as provided in
subsection (h) below, and shall become effective immediately after the
effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to all holders
of Common Shares entitling them (for a period expiring within 45 days after
the record date mentioned below) to subscribe for or purchase Common Shares
at a price per share less than the current market price per share of Common
Shares (as defined for purposes of this subsection (b) in subsection (e)
below), at the record date for the determination of
80
stockholders entitled to receive such rights or warrants, the conversion
price in affect immediately prior thereto shall be adjusted so that the
same shall equal the price determined by multiplying the conversion
price in effect immediately prior to the date of issuance of such rights
or warrants by a fraction, the numerator of which shall be the number of
Common Shares outstanding on the date of issuance of such rights or
warrants plus the number of Common Shares which the aggregate offering
price of the total number of Common Shares so offered would purchase at
such current market price, and the denominator of which shall be the
number of Common Shares outstanding on the date of issuance of such
rights or warrants plus the number of additional Common Shares
receivable upon exercise of such rights or warrants. Such adjustment
shall be made successively whenever any such rights or warrants are
issued, and shall become effective immediately, except as provided in
subsection (h) below, after such record date. In determining whether
any rights or warrants a entitle the Holders of the Debt Securities of
such series to subscribe for or purchase Common Shares at less than such
current market price, and in determining the aggregate offering price of
such Common Shares, there shall be taken into account any consideration
received by the Company for such rights or warrants plus the exercise
price thereof, the value of such consideration or exercise price, as the
case may be, if other than cash, to be determined by the Board of
Directors.
(c) In case the Company shall distribute to all holders of
Common Shares any shares of capital stock of the Company (other than Common
Shares) or evidences of its indebtedness or assets (excluding cash
dividends or distributions paid from retained earnings of the Company) or
rights or warrants to subscribe for or purchase any of its securities
(excluding those rights or warrants referred to in subsection (b) above)
(any of the foregoing being herein in this subsection (c) called the
"Special Debt Securities"), then, in each such case, unless the Company
elects to reserve such Special Debt Securities for distribution to the
Holders of Debt Securities of such series upon the conversion so that any
such Holder converting such Debt Securities will receive upon such
conversion, in addition to the Common Shares to which such Holder is
entitled the amount and kind of Special Debt Securities which such Holder
would have received if such Holder had, immediately prior to the record
date for the distribution of the Special Debt Securities, converted Debt
Securities into Common shares, the conversion price shall be adjusted so
that the same shall equal the price determined by the conversion price in
affect immediately prior to the date of such distribution by a fraction the
numerator of which shall be the current market price per share (as defined
for purpose of this subsection (c) in subsection (e) below) of Common
Shares on the record date mentioned above less the then fair market value
(as determined by the Board of Directors, whose determination shall, if
made in good faith, be conclusive of the portion of the Special Debt
Securities so distributed applicable to one Common Share, and the
denominator of which shall be the current market price per Common Shares
(as defined in subsection (e) below); PROVIDED, HOWEVER, that in the event
the then fair market value (as so determined) of the portion of the Special
Debt Securities so distributed applicable to one Common Share is equal to
or greater than the current market price per Common Shares (as defined in
subsection (e) below) on the record date mentioned above, in lieu of the
foregoing adjustment, adequate provision shall be made so that each Holder
of Debt Securities of
81
such series shall have the right to receive the amount and kind of
Special Debt Securities such holder would have received had he converted
such Debt Securities immediately prior to the record date for the
distribution of the Special Debt Securities. Such adjustment shall
become effective immediately, except as provided in subsection (h)
below, after the record date for the determination of stockholders
entitled to receive such distribution.
(d) If, pursuant to subsection (b) or (c) above, the number of Common
Shares shall have been adjusted because the Company has declared a
dividend, or made a distribution, on the outstanding Common Shares in the
form of any right or warrant to purchase securities of the Company, or the
Company has issued any such right or warrant, then, upon the expiration of
any such unexercised right or unexercised warrant, the conversion price
shall forthwith be adjusted to equal the conversion price that would have
applied had such right or warrant never been declared, distributed or
issued.
(e) For the purpose of any computation under subsection (b) above,
the current market price per Common Share on any date shall be deemed to be
the average of the reported last sales prices for the thirty consecutive
Trading Days (as defined below) commencing forty-five Trading Days before
the date in question. For the purpose of any computation under subsection
(c) above, the current market price per Common Share on any date shall be
deemed to be the average of the reported last sales prices for the ten
consecutive Trading Days before the date in question. The reported last
sales price for each day (whether for purposes of subsection (b) or
subsection (c)) shall be the reported last sales price, regular way, or, in
case no sale takes place on such day, the average of the reported closing
bid and asked prices, regular way, in either case as reported on the New
York Shares Exchange Composite Tape or, if the Common Shares are not listed
or admitted to trading an the New York Shares Exchange, on the principal
national securities exchange on which the Common Shares are listed or
admitted to trading or, if not listed or admitted to trading on any
national securities on the National Market System of the National
Association of Debt Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or, if the Common Shares are not quoted on such National Market
System, the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by NASDAQ or, if bid and asked prices
for the Common Shares on such day shall not have been reported through
NASDAQ, the average of the bid and asked prices for such day as furnished
by any New York Shares Exchange member firm regularly making a market in
the Common Shares selected for such purpose by the Board of Directors or a
committee thereof or, if no such quotations are available, the fair market
value of the Common Shares as determined by a New York Shares Exchange
Member firm regularly making a market in the Common Shares selected for
such purpose by the Board of Directors or a committee thereof. As used
herein, the term "Trading Day" with respect to the Common Shares means (x)
if the Common Shares are listed or admitted for trading on the New York
Shares Exchange or another national securities exchange, a day on which the
New York Stock Exchange or such other national securities exchange is open
for business or (y) if the Common Shares are quoted on the National Market
System of the NASDAQ, a day on which trades may be made on such
82
National Market System or (z) otherwise, any day other than a Saturday or
Sunday or a day an which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(f) No adjustment in the conversion price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such price; PROVIDED, HOWEVER, that any adjustments which by reason of this
subsection (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; and, PROVIDED, FURTHER,
that adjustment shall be required and made in accordance with the
provisions of this Article Sixteen (other than this subsection (f)) not
later than such time as may be required in order to preserve the tax free
nature of a distribution to the holders of Common Shares. All calculations
under this Article Sixteen shall be made to the nearest cent or to the
nearest 1/100 of a share, as the case may be, with one-half cent and 1/200
of a share, respectively, being rounded upward. Anything in this Section
1605 to the contrary notwithstanding, the company shall be entitled to make
such reductions in the conversion price, in addition to those required by
this Section 1605, as it in its discretion shall determine to be advisable
in order that any stock dividend, subdivision of shares, distribution of
rights or warrants to purchase stock or securities, or distribution of
other assets (other than cash dividends) hereafter made by the Company to
its shareholders shall not be taxable.
(g) Whenever the conversion price is adjusted, as herein provided the
Company shall promptly file with the Trustee, at the corporate trust office
of the Trustee, and with the office or agency maintained by the Company for
the conversion of Debt Securities of such series pursuant to Section 1002,
an Officers' Certificate, setting forth the conversion price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment. Neither the Trustee nor any conversion
agent shall be under any duty or responsibility with respect to any such
certificate or any facts or computations set forth therein, except to
exhibit said certificate from time to time to any Holder of a Security of
such series desiring to inspect the same. The Company shall promptly cause
a notice setting forth the adjusted conversion price to be mailed to the
Holders of Debt Securities of such series, as their names and addresses
appear upon the Security Register of the Company.
(h) In any case in which this Section 1605 provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (y) issuing
to the Holder of any Security of such series converted after such record
date and before the occurrence of such event the additional Common Shares
issuable upon such conversion by reason of the adjustment required by such
event over and above the Common Shares issuable upon such conversion before
giving effect to such adjustment and (z) paying to such holder any amount
in cash in lieu of any fractional Common Shares pursuant to Section 1606
hereof.
83
SECTION 1606. NO FRACTIONAL SHARES TO BE ISSUED. No fractional Common
Shares shall be issued upon any conversion of Debt Securities. If more than one
Security of any series shall be surrendered for conversion at one time by the
same Holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Debt Securities of such series (or specified portions thereof to the extent
permitted hereby) so surrendered. Instead of a fraction of a share of Common
Stock which would otherwise be issuable upon conversion of any Security or Debt
Securities (or specified portions thereof), the Company shall pay a cash
adjustment (computed to the nearest cent, with one-half cent being rounded
upward) in respect of such fraction of a share in an amount equal to the same
fractional interest of the reported last sales price (as defined in Section
1605(e)) of the Common Shares on the Trading Day (as defined in Section 1605(e))
next preceding the day of conversion.
SECTION 1607. PRESERVATION OF CONVERSION RIGHTS UPON CONSOLIDATION,
MERGER, SALE OR CONVEYANCE. In case of any consolidation of the Company with,
or merger of the Company into, any other corporation (other than a consolidation
or merger in which the Company is the continuing corporation), or in the case of
any sale or transfer of all or substantially all of the assets of the Company,
the corporation formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee, a
supplemental indenture, in accordance with the provisions of Articles Eight and
Nine as they relate to supplemental indentures, providing that the Holder of
each Security then Outstanding of a series which was convertible into Common
Shares shall have the right thereafter to convert such security into the kind
and amount of shares of stock and other securities and property, including cash,
receivable upon such consolidation merger, sale or transfer by a holder of the
number of Common Shares of the Company into which such Debt Securities might
have been converted immediately prior to such consolidation, merger, sale or
transfer. Such supplemental indenture shall conform to the provisions of the
Trust Indenture Act as then in effect and shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article Sixteen. Neither the Trustee nor any conversion agent shall
have any liability or responsibility for determining the correctness of any
provision contained in any such supplemental indenture relating either to the
kind or amount of shares of stock or other securities or property receivable by
Holders of the Debt Securities after any such consolidation, merger, sale or
transfer, or to any adjustment to be made with respect thereto and, subject to
the provisions of Section 313 of the Trust Indenture Act, may accept as
conclusive, evidence of the correctness of any such provisions and shall be
protected in relying upon an Officers' Certificate with respect thereto and an
Opinion of Counsel with respect to legal matters related thereto. If in the
case of any such consolidation, merger, sale or transfer, the stock or other
securities and property receivable by a Holder of the Debt Securities includes
stock or other securities and property of a corporation other than the successor
or purchasing corporation, then such supplemental indenture shall also be
executed by such other corporation and shall contain such additional provisions
to protect the interests of the Holders of the Debt Securities as the Board of
Directors shall reasonably consider necessary. The above provision of this
Section 1607 shall similarly apply to successive consolidations mergers, sales
or transfers.
84
SECTION 1608. NOTICE TO HOLDERS OF THE DEBT SECURITIES OF A SERIES PRIOR
TO TAKING CERTAIN TYPES OF ACTION. With respect to the Debt Securities of any
series, in case:
(a) the Company shall authorize the issuance to all holders of Common
Shares of rights or warrants to subscribe for or purchase shares of its
capital stock or of any other right;
(b) the Company shall authorize the distribution to all holders of
Common Shares of evidences of indebtedness or assets (except for cash
dividends or distributions paid from retained earnings of the Company);
(c) of any subdivision or combination of Common Shares or of any
consolidation or merger to which the Company is a party for which approval
by the shareholders of the Company is required, or of the sale or transfer
of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee and at the office or
agency maintained for the purpose of conversion of Debt Securities of such
series pursuant to Section 1002, and shall cause to be mailed to the Holders of
Debt Securities of such series, at their to last addresses as they shall appear
an the Security Register of the Company, at least ten days prior to the
applicable record date hereinafter specified, a notice stating (i) the date as
of which the holders of Common Shares to be entitled to receive any such rights,
warrants or distribution are to be determined, or (ii) the date on which any
such subdivision, combination, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action is expected to become
effective, and the date as of which it is expected that holders of record of
Common Shares shall be entitled to exchange their Common Shares for securities
or other property, if any, deliverable upon such subdivision, combination,
consolidation, merger, sale, transfer, dissolution, liquidation, winding up or
other action. The failure to give the notice required by this Section 1608 or
any defect therein shall not affect the legality or validity of any
distribution, right, warrant, subdivision, combination, consolidation, merger,
sale, transfer, dissolution, liquidation, winding up or other action, or the
vote upon any of the foregoing. Such notice shall also be published by and at
the expense of the Company not later than the aforesaid filing date at least
once in an Authorized Newspaper.
SECTION 1609. COVENANTS TO RESERVE SHARES FOR ISSUANCE ON CONVERSION OF
DEBT SECURITIES. The Company covenants that at all times it will reserve and
keep available out of each class of its authorized Common Shares, free from
preemptive rights, solely for the purpose of issue upon conversion of Debt
Securities of any series as herein provided, such number of Common Shares as
shall then be issuable upon the conversion of all outstanding Debt Securities of
such series. The Company covenants that all Common Shares which shall be so
issuable shall, when issued or delivered, be duly and validly issued Common
Shares into which Debt Securities of such series are convertible, and shall be
fully paid and nonassessable, free of all liens and
85
charges and not subject to preemptive rights and that, upon conversion, the
appropriate capital stock accounts of the Company will be duly credited.
SECTION 1610. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. The Company
covenants that if any Common Shares required to be reserved for purposes of
conversion of Debt Securities hereunder require registration or listing with
or approval of any governmental authority under any Federal or State law,
pursuant to the Securities Act of 1933, as amended, or the Debt Securities
Act of 1934, as amended, or any national or regional securities exchange on
which the Common Shares are listed at the time of delivery of any Common
Shares, before such shares may be issued upon conversion, the Company will
use its best efforts to cause such shares to be duly registered, listed or
approved, as the case may be.
SECTION 1611. PAYMENT OF TAXES UPON CERTIFICATES FOR SHARES ISSUED UPON
CONVERSION. The issuance of certificates for Common Shares upon the conversion
of Debt Securities shall be without charge to the converting Holders for any tax
(including, without limitation, all documentary and stamp taxes) in respect of
the Issuance and delivery of such certificates, and such certificates shall be
issued in the respective names of, or in such names as my be directed by, the
holders of the Debt Securities converted, provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate in a name
other than that of the Holder of the Security converted, and the Company shall
not be required to issue or deliver such certificate unless or until the Person
or Persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax be been paid.
SECTION 1612. TRUSTEE'S DUTIES WITH RESPECT TO CONVERSION PROVISIONS. The
Trustee and any conversion agent shall have no duty, responsibility or liability
to any Holder to determine any facts exist which may require any adjustment of
the conversion rate, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any conversion agent shall be accountable with respect to the
registration under securities laws, listing, validity or value (or the kind or
amount) of any Common Shares, or of any other securities or property, which may
at any time be issued or delivered upon the conversion of any Security, and
neither the Trustee nor any conversion agent makes any representation with
respect thereto. Neither the Trustee nor any conversion agent shall be
responsible for any failure of the Company to make any cash payment or to issue,
transfer or deliver any shares of stock or stock certificates or other
securities or property upon the surrender of any Security for the purpose of
conversion; and the Trustee and any conversion agent, subject to the provisions
of Section 313 of the Trust Indenture Act, shall not be responsible for any
failure of the Company to comply with any of the covenants of the Company
contained in this Article Sixteen.
SECTION 1613. CONVERSION OF DEBT SECURITIES INTO PREFERRED STOCK.
Notwithstanding anything to the contrary in this Article Sixteen, the Company
may issue Debt Securities that are convertible into Preferred Shares, including
Preferred Shares convertible into Common Shares,
86
in which case all terms and condition relating to the conversion of Debt
Securities into Preferred Shares, including any terms similar to those
provided in Sections 1601 through 1612, shall be as provided in or pursuant
to an appropriate Board Resolution or in any indenture supplemental hereto or
as otherwise contemplated by Section 301.
ARTICLE SEVENTEEN
SUBORDINATION OF SECURITIES
SECTION 1701. DEBT SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS. The
Company covenants and agrees, and each Holder of Debt Securities, by his
acceptance thereof, likewise covenants and agrees, that the indebtedness
represented by the Debt Securities and the payment of the principal of (and
premium, if any) and interest and any Additional Amounts payable in respect of
each and all of the Debt Securities is hereby expressly subordinated, to the
extent and in the manner hereinafter set forth, in right of payment to the prior
payment in full of Senior Indebtedness.
In the event (a) of any distribution of assets of the company upon any
dissolution, winding up, liquidation or reorganization of the Company whether in
bankruptcy, insolvency, reorganization or receivership proceeding or upon an
assignment for the benefit of creditors or any other marshaling of the assets
and liabilities of the Company or otherwise, except a distribution in connection
with a merger or consolidation or a conveyance or transfer of all or
substantially all of the properties of the Company which compiles with the
requirements of Article Eight, or (b) that a default shall have occurred and be
continuing with respect to the payment of principal of (or premium, if any) or
interest on or any Additional Amounts payable in of any Senior Indebtedness, or
(c) that the principal of the Debt Securities of any series (or in the case of
Original Issue Discount Debt Securities, the portion of the principal amount
thereof referred to in section 502) shall have been declared due and payable
pursuant to Section 502 and such declaration shall not have been rescinded and
annulled as provided in Section 502, then:
(1) in a circumstance described in the foregoing clause (a) or (b)
the holders of all Senior Indebtedness, and in the circumstance described
in the foregoing clause (c) the holders of all Senior Indebtedness (other
than Other Obligations) outstanding at the time the principal of such Debt
Securities (or in the case of Original Issue Discount Debt Securities, such
portion of the principal amount) shall have been so declared due and
payable, shall first be entitled to receive payment of the full amount due
thereon in respect of principal, premium (if any), Interest and Additional
Amounts, or provision shall be made for such payment in money or money's
worth, before the Holders of any of the Debt Securities are entitled to
receive any payment on account of the principal of (or premium, if any) or
interest on or any Additional Amounts in respect of the indebtedness
evidenced by the Debt Securities;
(2) any payment by, or distribution of assets of, the Company of any
kind or character, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted or securities of the
Company or any other corporation provided
87
for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article with
respect to the securities, the payment of all Senior Indebtedness,
provided that the rights of the Holders of the Senior Indebtedness are
not altered by such reorganization or readjustment), to which the
Holders of any of the Debt Securities would be entitled except for the
subordination provisions of this Article shall be paid or delivered by
the person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to
the holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instrument evidencing an of such Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision therefor) to the
holders of such Senior Indebtedness, before any payment or distribution
is made to the Holders of the indebtedness evidenced by the Debt
Securities under this Indenture; and
(3) in the event that, notwithstanding the foregoing, any payment by,
or distribution of assets of, the Company of any kind or character, whether
in cash, property or securities (other than securities of the Company as
reorganized or readjusted or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in this
Article with respect to the Debt Securities, to the payment of all Senior
Indebtedness, provided that the rights of the holders of Senior
Indebtedness are not altered by such reorganization or readjustment), shall
be received by the Holders of an of the Debt Securities before all Senior
Indebtedness is paid in full, such payment or distribution shall be paid
over to the holders of such Senior Indebtedness is paid in full, such
payment or distribution shall be paid over to the holders of such Senior
Indebtedness or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments evidencing any
of such Senior Indebtedness may have been issued, ratably as aforesaid, for
application to the payment of all Senior Indebtedness remaining unpaid
until all such Senior Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness.
SECTION 1702. SUBROGATION. Subject to the payment in full of all Senior
Indebtedness to which the indebtedness evidenced by the Debt Securities is in
the circumstances subordinated as provided in Section 1701, the Holders of the
Debt Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until all
amounts owing on the Debt Securities shall be paid in full, and, as between the
Company, its creditors other than holders of such Senior Indebtedness, and the
Holders of the Debt Securities, no such payment or distribution made to the
holders of such Senior Indebtedness by virtue of this Article which otherwise
would have been made to the Holders of the Debt Securities shall be deemed to be
a payment by the Company on account of such Senior Indebtedness, it being
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative
88
rights of the Holders of the Debt Securities, on the one hand, and the
holders of Senior Indebtedness.
SECTION 1703. OBLIGATIONS OF THE COMPANY UNCONDITIONAL. Nothing contained
in this Article or elsewhere in its Indenture or in the Debt Securities is
intended to or shall impair, as between the Company, its creditors other than
the holders of Senior Indebtedness, and the Holders of the Debt Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Debt Securities the principal of (and premium, if any) and
interest on and any Additional Amounts in respect of the Debt Securities as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders of the Debt
Securities and creditors of the Company other than the holders of Senior
Indebtedness nor shall anything herein or therein prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee and the Holders of the Debt Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending or
upon a certificate of the trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or agent or other person making any
payment or distribution, delivered to the Trustee or to the Holders of the Debt
Securities, for the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount paid or distributed thereon and all other facts pertinent thereto or to
this Article.
SECTION 1704. PAYMENTS ON DEBT SECURITIES PERMITTED. Nothing contained in
this Article or elsewhere in this Indenture, or in any of the Debt Securities,
shall affect the obligation of the Company to make, or prevent the Company from
making, payment of the principal of (or premium, if any) or interest on or any
Additional Amounts in respect of the Debt Securities in accordance with the
provision hereof and thereof, except as otherwise provided in this Article.
SECTION 1705. EFFECTUATION OF SUBORDINATION BY TRUSTEE. Each Holder of
Debt Securities, by his acceptance thereof, authorizes and directs the Trustee
in his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any all such purposes.
SECTION 1706. KNOWLEDGE OF TRUSTEE. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment of moneys to or by the Trustee, or the taking of any
other action by the Trustee, unless and until the Trustee shall have received
written notice thereof from the Company, and Holder of Debt Securities, any
paying or conversion agent of the Company or the holder or representative of any
class of Senior
89
Indebtedness; provided, however, that if the Trustee shall not
have received the notice provided for in this Section at least 3 Business Days
prior to the date upon which, by the terms hereof, any money may become payable
for any purpose (including, without limitation, the payment of the principal of
(or premium, if any) or interest on, or Additional Amounts in respect of, any
Security) then, anything herein contained to the contrary notwithstanding, the
Trustee shall have all power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it during or
after such 3 Business Day period.
SECTION 1707. TRUSTEE MAY HOLD SENIOR INDEBTEDNESS. The Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness at the time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in Section
313 of the Trust Indenture Act or elsewhere in this Indenture shall deprive the
Trustee of any of its rights as such holder.
Nothing in this Article shall subordinate any claims of, or payments to,
the Trustee (under or pursuant to Section 606) to Senior Indebtedness.
SECTION 1708. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT IMPAIRED. No
right of any present or future holder of any Senior Indebtedness to enforce the
subordination herein shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or by any non-compliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
* * * *
90
This Indenture 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 Indenture.
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.
BRE PROPERTIES, INC.
[SEAL] By
----------------------------
Title:
Attest:
------------------------------ [ ], as Trustee
Title: -----------------------
[SEAL] By
----------------------------
Title:
Attest:
------------------------------
Title:
00
XXXXX XX XXXXXXXXXX )
) ss:
COUNTY OF SAN FRANCISCO )
On the ____________ day of ___________, 1997, before me personally came
__________________, to me known, who, being be me duly sworn, did depose and say
that he/she resides at _______________, ______________, that he/she is the
___________ of BRE PROPERTIES, INC., one of the corporations described in and
which executed the foregoing instrument and that he/she signed his/her name
thereto by authority of the Board of Directors of said corporation.
[Notarial Seal]
------------------------------
Notary Public
COMMISSION EXPIRES
STATE OF ________ )
) ss:
COUNTY OF _________ )
On the ____________ day of ___________, 1997, before me personally came
__________________, to me known, who, being be me duly sworn, did depose and say
that he/she resides at _______________, that he/she is ___________ of
_______________, one of the corporations described in and which executed the
foregoing instrument and that he/she signed his/her name thereto by authority of
the Board of Directors of said corporation.
[Notarial Seal]
------------------------------
Notary Public
COMMISSION EXPIRES
92
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Debt Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 2.165-
12(c)(10)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Debt Securities through foreign branches of United States financial
institutions and who hold the Debt Securities through such United States
financial institutions on the date hereof (and in either case (a) or (b), each
such United States financial institution hereby agrees, on its own behalf or
through its agent, that you may advise BRE Properties, Inc. or its agent that
such financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or foreign
financial institution described in clause (iii) above (whether of not also
described in clause (i) or (ii)), this is to further certify that such financial
institution has not acquired the Debt Securities for purposes of resale directly
or indirectly to a United States person or to a person within the United States
or its possessions.
A-1
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Debt Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S. $] _______________ of
such interest in the above-captioned Debt Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest in
a Permanent Global Security or an exchange for and delivery of definitive Debt
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ______________, 19__
[to be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment ate occurring prior to the Exchange Date, as applicable]
[Name of Person making
Certification]
-----------------------------
(Authorized Signator)
Name:
Title:
X-0
XXXXXXX X-0
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Debt Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$]
_______________________ principal amount of the above-captioned Debt Securities
(i) is owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal Income taxation regardless
of its source ("United States person(s)"), (ii) is owned by United States
person(s) that are (a) foreign branches of Unites States financial institutions
(financial institutions, as defined in U.S. Treasury Regulations Section 1.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Debt Securities through foreign branches of United States financial institutions
and who hold the Debt Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise BRE Properties, Inc. or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institution(s) for purposes
of resale during the restricted period (as defined in United States treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Debt Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
A-3
We further certify that (i) we are not making available herewith for exchange
(or, if relevant, collection of any interest) any portion of the temporary
global Security representing the above-captioned Debt Securities excepted in the
above referenced certificates of member Organizations and (ii) as of the date
hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax
legislation in the United States. If administrative or legal proceedings are
commenced or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated: ______________ 19__
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Xxxxxx Guaranty Trust
company of New York,
Brussels Office,] as
Operator of the
Euroclear System
[Cedel S.A.]
By __________________
A-4
