INDENTURE Dated as of ____________, 20__ Between CHINA GREEN AGRICULTURE, INC., as Issuer And as Trustee
EXHIBIT
4.3
|
Dated as
of ____________, 20__
Between
as
Issuer
And
[__________________________],
as
Trustee
Debt
Securities
|
TABLE
OF CONTENTS
Page
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ARTICLE
I
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DEFINITIONS
AND INCORPORATION BY REFERENCE
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1
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SECTION
1.01.
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Definitions
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1
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SECTION
1.02.
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Other
Definitions
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3
|
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SECTION
1.03
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Incorporation
by Reference of Trust Indenture Act
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3
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SECTION
1.04
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Rules
of Construction
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3
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ARTICLE
II
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THE
SECURITIES
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4
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SECTION
2.01
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Unlimited
in Amount, Issuable in Series, Form and
Dating
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4
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SECTION
2.02
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Execution
and Authentication
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6
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SECTION
2.03
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Registrar
and Paying Agent
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6
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SECTION
2.04
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Paying
Agent to Hold Assets in Trust
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7
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SECTION
2.05
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Holder
Lists
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7
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SECTION
2.06
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Registration
of Transfer and Exchange
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7
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SECTION
2.07
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Replacement
Securities
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8
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SECTION
2.08
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Outstanding
Securities
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8
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SECTION
2.09
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Treasury
Securities
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8
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SECTION
2.10
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Temporary
Securities
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8
|
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SECTION
2.11
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Cancellation
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8
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SECTION
2.12
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CUSIP
Numbers
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8
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SECTION
2.13
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Defaulted
Interest
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9
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|
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SECTION
2.14
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Special
Record Dates
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9
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ARTICLE
III
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REDEMPTION
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9
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SECTION
3.01
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Notices
to Trustee
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9
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SECTION
3.02
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Selection
of Securities to Be Redeemed
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9
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SECTION
3.03
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Notice
of Redemption
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9
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SECTION
3.04
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Effect
of Notice of Redemption
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10
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SECTION
3.05
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Deposit
of Redemption Price
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10
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SECTION
3.06
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Securities
Redeemed in Part
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10
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ARTICLE
IV
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COVENANTS
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10
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SECTION
4.01
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Payment
of Securities
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10
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SECTION
4.02
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Maintenance
of Office or Agency
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10
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SECTION
4.03
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SEC
Reports
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11
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|
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SECTION
4.04
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Compliance
Certificate
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11
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SECTION
4.05
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Taxes
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11
|
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SECTION
4.06
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Corporate
Existence
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11
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ARTICLE
V
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MERGER,
ETC.
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11
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SECTION
5.01
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When
Company May Merge, etc.
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11
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SECTION
5.02
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Successor
Corporation Substituted
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11
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ARTICLE
VI
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DEFAULTS
AND REMEDIES
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12
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i
SECTION
6.01
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Events
of Default
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12
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SECTION
6.02
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Acceleration
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12
|
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SECTION
6.03
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Other
Remedies
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13
|
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SECTION
6.04
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Wavier
of Past Defaults
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13
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SECTION
6.05
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Control
by Majority
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13
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SECTION
6.06
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Limitation
on Suits
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13
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SECTION
6.07
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Rights
of Holders to Receive Payment
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13
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SECTION
6.08
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Collection
Suit by Trustee
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13
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SECTION
6.09
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Trustee
May File Proofs of Claim
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13
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SECTION
6.10
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Priorities
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14
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SECTION
6.11.
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Undertaking
for Costs
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14
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ARTICLE
VII
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TRUSTEE
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14
|
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SECTION
7.01.
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Duties
of Trustee
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14
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SECTION
7.03.
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Individual
Rights of Trustee
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16
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SECTION
7.04.
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Trustee’s
Disclaimer
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16
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SECTION
7.05.
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Notice
of Defaults
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16
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SECTION
7.06.
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Reports
by Trustee to Holders
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16
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SECTION
7.07.
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Compensation
and Indemnity
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16
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SECTION
7.08.
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Replacement
of Trustee
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17
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SECTION
7.09.
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Successor
Trustee by Merger, Etc.
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17
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SECTION
7.10.
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Eligibility;
Disqualification
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17
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SECTION
7.11.
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Preferential
Collection of Claims Against the Company
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18
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ARTICLE
VIII
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DISCHARGE
OF INDENTURE
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18
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SECTION
8.01.
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Satisfaction
and Discharge of Indenture
|
18
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SECTION
8.02.
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Application
of Trust Funds; Indemnification
|
18
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SECTION
8.03.
|
Legal
Defeasance of Securities of any Series
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19
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SECTION
8.04.
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Covenant
Defeasance
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20
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SECTION
8.05.
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Repayment
to Company
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20
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ARTICLE
IX
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AMENDMENTS,
SUPPLEMENTS AND WAIVERS
|
21
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SECTION
9.01.
|
Without
Consent of Holders
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21
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SECTION
9.02.
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With
Consent of Holders
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21
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SECTION
9.03.
|
Compliance
with Trust Indenture Act
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21
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SECTION
9.04.
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Revocation
and Effect of Consents
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21
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SECTION
9.05.
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Notation
on or Exchange of Securities
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21
|
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SECTION
9.06.
|
Trustee
to Sign Amendment, etc.
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22
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ARTICLE
X
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MISCELLANEOUS
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22
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SECTION
10.01.
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Trust
Indenture Act Controls
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22
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SECTION
10.02.
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Notices
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22
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SECTION
10.03.
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Communication
by Holders with Other Holders
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23
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SECTION
10.04.
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Certificate
and Opinion as to Conditions Precedent
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23
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SECTION
10.05.
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Statements
Required in Certificate or Opinion
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23
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SECTION
10.06.
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Rules
by Trustee and Agents
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23
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SECTION
10.07.
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Legal
Holidays
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23
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ii
SECTION 10.08.
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Duplicate Originals
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23
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SECTION 10.09.
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Governing Law
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23
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SECTION 10.10.
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No Adverse Interpretation of Other
Agreements
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23
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SECTION 10.11.
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Successors
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23
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SECTION 10.12.
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Severability
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23
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SECTION 10.13.
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Counterpart Originals
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24
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iii
CROSS-REFERENCE
TABLE
TIA
Section
|
Section
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||
Section
310 (a)(1)
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7.10
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(a)(2)
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7.10
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||
(a)(3)
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N.A.
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(a)(4)
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N.A.
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||
(a)(5)
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7.10
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(b)
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7.08;
7.10
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(c)
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N.A.
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Section
311 (a)
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7.11
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||
(b)
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7.11
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||
(c)
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N.A.
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||
Section
312(a)
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2.05
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||
(b)(1)
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N.A.
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||
(b)(2)
|
7.06
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||
(c)
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7.06;
12.02
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||
(d)
|
7.06
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Section
314 (a)(1), (2), (3)
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4.03
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||
(a)(4)
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4.04
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||
(b)
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N.A.
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||
(c)(1)
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10.04
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||
(c)(2)
|
10.04
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||
(c)(3)
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N.A.
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||
(d)
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N.A.
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||
(e)
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10.05
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||
(f)
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N.A.
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||
Section
315 (a)
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7.01(b)
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||
(b)
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7.05;
10.02
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||
(c)
|
7.01(a)
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(d)
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7.01(c)
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(e)
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6.11
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Section
316(a) (last sentence)
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2.09
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(a)(1)(A)
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6.05
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(a)(1)(B)
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6.04
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||
(a)(2)
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N.A.
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(b)
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6.07
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||
(c)
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9.04
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Section
317 (a)(1)
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6.08
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||
(a)(2)
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6.09
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||
(b)
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2.04
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||
Section
318 (a)
|
10.01
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N.A.
means Not Applicable
NOTE:
This Cross-Reference Table shall not, for any purpose, be deemed to be a part of
the indenture.
iv
INDENTURE
dated as of __________, 20___, between CHINA GREEN AGRICULTURE, INC., a Nevada
corporation (the “Company”), as issuer,
and [_______________], a [__________] banking corporation, as Trustee (the
“Trustee”).
The
Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its debentures, notes or other
evidences of indebtedness to be issued in one or more series (the “Securities”), as
herein provided, up to such principal amount as may from time to time be
authorized in or pursuant to one or more resolutions of the Board of Directors
or by supplemental indenture.
Each
party agrees as follows for the benefit of the other party and for the equal and
ratable benefit of the Holders of each series of the Securities:
ARTICLE
I
.A DEFINITIONS
AND INCORPORATION BY REFERENCE
SECTION
1.01. Definitions.
“Affiliate” means,
when used with reference to the Company or another person, any person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, the Company or such other person, as the case may be. For the
purposes of this definition, “control” when used with respect to any specified
person means the power to direct or cause the direction of management or
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 of the foregoing.
“Agent” means any
registrar, Paying Agent, authenticating agent or co-registrar.
“Board of Directors”
means, with respect to any person, the Board of Directors of a person or any
duly authorized committee of such Board of Directors.
“Board Resolution”
means, with respect to any person, a copy of a resolution certified
by the secretary or an assistant secretary of such person to have been duly
adopted by the Board of Directors of such person or any duly authorized
committee thereof and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
“Business Day” means a
day that is not a Legal Holiday as defined in Section
10.07.
“Company” means the
party named as such in this Indenture, or any other obligor under this
Indenture, until a successor replaces it pursuant to this Indenture and
thereafter means the successor.
“Consolidated” or
“consolidated”
means, when used with reference to any amount, such amount determined on a
consolidated basis in accordance with GAAP, after the elimination of
intercompany items.
“Consolidated Assets”
means, at a particular date, all amounts which would be included under total
assets on a consolidated balance sheet of the Company and its Subsidiaries as at
such date, determined in accordance with GAAP.
“Corporate Trust
Office” means the office of the Trustee at which at any particular time
its corporate services business shall be principally administered, which office
at the date of execution of this Indenture is located at
[__________________].
“Default” means any
event which is, or after notice or lapse of time or both would be, an Event of
Default.
“Event of Default” has
the meaning provided in Section
6.01.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended any successor
Statute.
“GAAP” means generally
accepted accounting principles set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are
applicable from time to time.
1
“Global Security”
means a Security issued to evidence all or a part of any series of Securities
that is executed by the Company and authenticated and delivered by the Trustee
to a depositary or pursuant to such depositary’s instructions, all in accordance
with this Indenture and pursuant to Section 2.01, which
shall be registered as to principal and interest in the name of such depositary
or its nominee.
“Holder” means the
person in whose name a Security is registered on the registrar’s
books.
“Indebtedness” of a
Person means all obligations which would be treated as liabilities upon a
balance sheet of such Person prepared on a consolidated basis in accordance with
GAAP.
“Indenture” means this
Indenture, as amended, supplemented or modified from time to time, and shall
include the terms of a particular series of Securities established as
contemplated by Section 2.01.
“Lien” means any lien,
security interest, charge or encumbrance of any kind.
“Obligations” means
all obligations for principal, premium, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
“Officer” of any
person means the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Treasurer, the Secretary or the Controller of
such person.
“Officers’
Certificate” means a certificate signed by two Officers or by an Officer
and an Assistant Treasurer, Assistant Secretary or Assistant Controller of any
person.
“Opinion of Counsel”
means a written opinion from legal counsel who is reasonably acceptable to the
Trustee. The counsel may be an employee of or counsel to the
Company.
“Original Issue Discount
Security” means any Security which provides that an amount less than its
principal amount is due and payable upon acceleration after an Event of
Default.
“Person” or “person” means any
individual, corporation, partnership, joint venture, trust, association, limited
liability company, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“Redemption Date”
means, with respect to any Security to be redeemed, the date fixed for such
redemption pursuant to this Indenture.
“Redemption Price” has
the meaning provided in Section
3.03.
“SEC” means the
Securities and Exchange Commission and any government agency succeeding to its
functions.
“Securities” means the
means the securities authenticated and delivered under this
Indenture.
“Securities Act” means
the Securities Act of 1933, as amended.
“Series” means a
series of Securities established pursuant to this Indenture.
“Subsidiary” of any
Person means (i) a corporation a majority of whose capital stock with voting
power, under ordinary circumstances, to elect directors is at the time, directly
or indirectly, owned by such Person or by such Person and a subsidiary or
subsidiaries of such Person or by a subsidiary or subsidiaries of such Person or
(ii) any other Person (other than a corporation) in which such Person or such
Person and a subsidiary or subsidiaries of such Person or a subsidiary or
subsidiaries of such Persons, at the time, directly or indirectly, own at least
a majority voting interest under ordinary circumstances.
2
“TIA” means the Trust
Indenture Act of 1939 (15 U.S. Code Section 77aaa-77bbbb), as in effect on the
date of this Indenture; provided, however, that in the
event the TIA is amended after such date, “TIA” means, to the
extent required by such amendment, the Trust Indenture Act of 1939, as so
amended.
“Trustee” means the
party named as such above until a successor becomes such pursuant to this
Indenture and thereafter means or includes each party who is then a trustee
hereunder, and if at any time there is more than one such party, “Trustee” as used with
respect to the Securities of any series means the Trustee with respect to
Securities of that series. If Trustees with respect to different series of
Securities are Trustees under this Indenture, nothing herein shall constitute
the Trustees co-Trustees of the same trust, and each Trustee shall be the
Trustee of a trust separate and apart from any trust administered by any other
Trustee with respect to a different series of Securities.
“Trust Officer” means
any officer in the corporate trust department of the Trustee or any other
officer of the Trustee assigned by the Trustee to administer this
Indenture.
“U.S. Government
Obligations” means (i) direct obligations of the United States of America
for the payment of which the full faith and credit of the United States of
America is pledged or (ii) obligations of a person controlled or supervised by
and acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America and which in either case, are
non-callable at the option of the issuer thereof.
SECTION
1.02. Other
Definitions.
Defined
in
|
||||
Term
|
Section
|
|||
“Bankruptcy Law”
|
6.01 | |||
“Custodian”
|
6.01 | |||
“Legal Holiday”
|
10.07 | |||
“Paying Agent”
|
2.03 | |||
“Registrar”
|
2.03 |
SECTION 1.03. Incorporation
by Reference of Trust Indenture Act. Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in
and made a part of this Indenture.
The
following TIA terms used in this Indenture have the following
meanings:
“indenture Securities”
means the Securities;
“indenture Security
holder” means a Holder;
“indenture to be
qualified” means this Indenture;
“indenture Trustee” or
“institutional
Trustee” means the Trustee; and
“obligor” on the
Securities means the Company and any other obligor on the indenture
Securities.
All other
TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule have the meanings assigned
to them by such definitions.
SECTION 1.04. Rules of
Construction.
Unless the context otherwise requires: (i) a term has the meaning assigned to
it; (ii) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP; (iii) “or” is not exclusive; (iv) words in the singular
include the plural, and in the plural include the singular; (v) provisions apply
to successive events and transactions; and (vi) statements relating to the
payment of principal and interest shall include the payment, premium (if any)
and interest.
3
ARTICLE
II
THE
SECURITIES
SECTION
2.01. Unlimited in
Amount, Issuable in Series, Form and Dating.
The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in one
or more series. There shall be established pursuant to a Board Resolution or an
Officers’ Certificate pursuant to authority granted under a Board Resolution or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(a)
The title, ranking and authorized denominations of
such Securities;
(b)
The aggregate principal amount of such Securities
and any limit on such aggregate principal amount;
(c)
The price (expressed as a percentage of the
principal amount thereof) at which such Securities will be issued and, if other
than the principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity thereof;
(d)
The date or dates, or the method for determining
such date or dates, on which the principal of such Securities will be
payable;
(e)
The rate or rates (which may be fixed or variable),
or the method by which such rate or rates shall be determined, at which such
Securities will bear interest, if any;
(f)
The date or dates, or the method for
determining such date or dates, from which any such interest will accrue, the
dates on which any such interest will be payable, the record dates for such
interest payment dates, or the method by which such dates shall be determined,
the persons to whom such interest shall be payable, and the basis upon which
interest shall be calculated if other than that of a 360-day year of twelve
30-day months;
(g)
The place or places where the principal of and
interest, if any, on such Securities will be payable, where such Securities may
be surrendered for registration of transfer or exchange and where notices or
demands to or upon the Company in respect of such Securities and this Indenture
may be served;
(h)
The period or periods, if any, within which, the
price or prices at which and the other terms and conditions upon which such
Securities may, pursuant to any optional or mandatory redemption provisions, be
redeemed, as a whole or in part, at the option of the Company;
(i)
The obligation, if any, of the Company to
redeem, repay or purchase such Securities pursuant to any sinking fund or
analogous provision or at the option of a holder thereof, and the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Securities will be redeemed, repaid or purchased, as
a whole or in part, pursuant to such obligation;
(j)
If other than U.S. dollars, the currency or
currencies in which such Securities are denominated and payable, which may be a
foreign currency or units of two or more foreign currencies or a composite
currency or currencies, and the terms and conditions relating
thereto;
(k)
Whether the amount of payments of principal of (and
premium, if any) or interest, if any, on such Securities may be determined with
reference to an index, formula or other method (which index, formula or method
may, but need not be, based on the yield on or trading price of other
Securities, including United States Treasury Securities, or on a currency,
currencies, currency unit or units, or composite currency or currencies) and the
manner in which such amounts shall be determined;
4
(l)
Whether the principal of or interest on the
Securities of the series is 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 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 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 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 Securities are to be so
payable;
(m)
Provisions, if any, granting special rights to the
holders of Securities of the series upon the occurrence of such events as may be
specified;
(n)
Any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to Securities of
the series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants described herein;
(o)
Whether and under what circumstances the Company will
pay any additional amounts on such Securities in respect of any tax, assessment
or governmental charge and, if so, whether the Company will have the option to
redeem such Securities in lieu of making such payment;
(p)
Whether Securities of the series are to be issuable
as registered Securities, bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of bearer Securities
and the terms upon which bearer Securities of the series may be exchanged for
registered Securities of the series and vice versa (if permitted by applicable
laws and regulations), whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the series are
to be issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent Global Security may
exchange such interests for Securities of such series and of like tenor or any
authorized form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in this Indenture,
and, if registered Securities of the series are to be issuable as a Global
Security, the identity of the depositary for such series;
(q)
The date as of which any bearer Securities of the
series and any temporary Global Security representing outstanding Securities of
the series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(r)
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 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 a temporary Global
Security on an interest payment date will be paid if other than in the manner
provided in this Indenture;
(s)
Whether such Securities will be issued in
certificated or book entry form;
(t)
The applicability, if any, of the legal
defeasance and covenant defeasance provisions of this Indenture to the
Securities of the series;
(u)
If the 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;
(v)
Whether the Securities will be listed for trading on
an exchange and the identity of such exchange;
(w)
Whether any underwriters will act as market makers
for the Securities;
(x)
Any guarantees of such Securities by the Company’s
Subsidiaries or others;
5
(y)
The date or dates, if any, after which the
Securities may be converted or exchanged into or for shares of the Company’s
common stock or another company’s securities or properties or cash and the terms
for any such conversion or exchange;
(z)
Any other terms of the series.
The
Securities of any series shall be substantially of the tenor and purport as set
forth in one or more indentures supplemental hereto or as provided in a written
order of the Company, in each case with such insertions, omission, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved 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 Securities of that series may be listed or of the depository,
or to conform to usage.
The
Trustee’s Certificate of Authentication shall be in substantially the following
form:
“This is
one of the Securities of the series designated in accordance with, and referred
to in the within-mentioned Indenture.
Dated:
[____________________],
as Trustee
By:
|
|
|
Authorized
Signatory”
|
SECTION 2.02. Execution
and Authentication. Two Officers shall sign the
Securities for the Company by manual or facsimile signature.
If an
Officer whose signature is on a Security no longer holds that office at the time
the Security is authenticated, the Security shall be valid
nevertheless.
A
Security shall not be valid until authenticated by the manual signature of the
Trustee. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The
Trustee shall authenticate Securities for original issue upon a written order of
the Company signed by one Officer of the Company.
The
Trustee may appoint an authenticating agent reasonably acceptable to the Company
to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Company or an Affiliate of the
Company.
If the
Company shall establish pursuant to Section 2.01 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall authenticate
and deliver one or more Global Securities that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of all of the
Securities of such series to be issued in the form of Global Securities and not
yet canceled, (ii) shall be registered in the name of the depositary for such
Global Security or Securities or the nominee of such depositary, (iii) shall be
delivered by the Trustee to such depositary or pursuant to such depositary’s
instructions, and (iv) shall bear a legend substantially to the following
effect: “Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as a
whole by the depositary to the nominee of the depositary or by a nominee of the
depositary to the depositary or another nominee of the depositary or by the
depositary or any such nominee to a successor depositary or a nominee of such
successor depositary.”
Each
depositary designated pursuant to Section 2.01 must, at
the time of its designation and at all times while it services as depositary, be
a clearing agency registered under the Exchange Act.
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SECTION 2.03. Registrar
and Paying Agent.
The Company shall maintain an office or agency where Securities of a particular
series may be presented for registration of transfer or for exchange (the “Registrar”) and an
office or agency where Securities may be presented for payment (the “Paying Agent”).
The registrar for a particular series of Securities shall keep a register of the
Securities of that series and of their transfer and exchange. The Company
may appoint one or more co-registrars and one or more additional Paying Agents
for each series of Securities. The term “Paying Agent” includes any additional
paying agent and the term “Registrar” includes any additional registrar. The
Company may change any Paying Agent or registrar without prior notice to any
Holder.
The
Company shall enter into an appropriate agency agreement with any Agent not a
party to this Indenture, which shall incorporate the terms of the TIA and
implement the terms of this Indenture which relate to such Agent. The Company
shall give prompt written notice to the Trustee of the name and address of any
Agent who is not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Company or any Affiliate of the Company may act as Paying Agent or
Registrar.
The
Company hereby initially appoints the Trustee as Registrar and Paying Agent for
each series of Securities unless another Registrar or Paying Agent, as the case
may be, is appointed prior to the time the Securities of that series are first
issued.
SECTION 2.04. Paying
Agent to Hold Assets in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
assets held by the Paying Agent for the payment of principal of and interest on
the Securities (whether such money has been paid to it by the Company or any
other obligor on the Securities) and shall notify the Trustee of any failure by
the Company (or any other obligor on the Securities) in making any such
payment. While any such failure continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary of the Company) shall
have no further liability for the money so paid over to the Trustee. If the
Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Holders all money held
by it as Paying Agent.
SECTION 2.05. Holder
Lists. The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Holders,
separately by series, and shall otherwise comply with TIA Section 312(a).
If the Trustee is not the registrar, the Company shall furnish to the Trustee on
or before each interest payment date for the Securities and at such other times
as the Trustee may request in writing a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of Holders,
separately by series, relating to such interest payment date or request, as the
case may be.
SECTION 2.06. Registration
of Transfer and Exchange. When Securities of a series are presented to
the registrar or a co-registrar with a request to register their transfer or to
exchange them for an equal principal amount of Securities of other
denominations, the registrar or co-registrar shall register the transfer or make
the exchange if its requirements for such transaction are met. To permit
registrations of transfer and exchanges, the Company shall issue and the Trustee
shall authenticate Securities at the registrar’s or co-registrar’s request. No
service charge shall be made for any registration of transfer or exchange, 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 registration,
transfer or exchange of Securities other than exchanges pursuant to Section 2.10, 3.06 or 9.05 not involving
any transfer.
The
registrar or co-registrar shall not be required to register the transfer or
exchange of (i) any Security of a particular series selected for redemption in
whole or in part, except the unredeemed portion of any Security of that series
being redeemed in part, or (ii) any Security of a particular series during a
period beginning at the opening of business 15 days before the day of any
selection of Securities of that series for redemption under Section 3.02 and
ending at the close of business on the date of selection.
Any
Holder of a beneficial interest in a Global Security shall, by acceptance of
such beneficial interest, agree that transfers of beneficial interest in such
Global Security may be effected only through a book entry system maintained by
the holder of such Global Security (or its agent), and that ownership of a
beneficial interest in the Security shall be required to be reflected in a book
entry system.
7
SECTION 2.07. Replacement
Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security of the same series if the requirements of the Trustee and the Company
are met; provided that, if any
such Security has been called for redemption in accordance with the terms
thereof, the Trustee may pay the Redemption Price thereof on the Redemption Date
without authenticating or replacing such Security. The Trustee or the
Company may, in either case, require the Holder to provide an indemnity bond
sufficient in the judgment of each of the Trustee and the Company to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer if
a Security is replaced or if the Redemption Price therefor is paid pursuant to
this Section. The Company may charge the Holder who has lost a Security for its
expenses in replacing a Security.
Every
replacement Security is an obligation of the Company and shall be entitled to
the benefits of this Indenture equally and proportionately with any and all
other Securities of the same series.
SECTION 2.08. Outstanding
Securities. The
Securities of any series outstanding at any time are all the Securities of that
series authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding.
If a
Security is replaced pursuant to Section 2.07, it
ceases to be outstanding and interest ceases to accrue unless the Trustee
receives proof satisfactory to it that the replaced Security is held by a bona
fide purchaser.
If all
principal of and interest on any of the Securities are considered paid under
Section 4.01,
such Securities shall cease to be outstanding and interest on them shall cease
to accrue.
Except as
provided in Section
2.09, a Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds such Security.
For each
series of Original Issue Discount Securities, the principal amount of such
Securities that shall be deemed to be outstanding and used to determine whether
the necessary Holders have given any request, demand, authorization, direction,
notice, consent or waiver, shall be the principal amount of such Securities that
could be declared to be due and payable upon acceleration upon an Event of
Default as of the date of such determination. When requested by the
Trustee, the Company will advise the Trustee of such amount, showing its
computations in reasonable detail.
SECTION 2.09. Treasury
Securities. In
determining whether the Holders of the required principal amount of Securities
of any series have concurred in any direction, waiver or consent, Securities
owned by the Company or an Affiliate of the Company shall be considered as
though they are not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which such Trustee actually knows are so owned shall
be so disregarded.
SECTION 2.10. Temporary
Securities. Until
definitive Securities are ready for delivery, the Company may prepare and
execute and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Holders of temporary Securities shall be entitled to all of
the benefits of this Indenture.
SECTION 2.11. Cancellation. The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange, payment or repurchase. The Trustee
shall cancel all Securities surrendered for registration of transfer, exchange,
payment, repurchase, redemption, replacement or cancellation and shall destroy
such Securities (subject to the record retention requirements of the Exchange
Act). Certification of the destruction of all cancelled Securities shall
be promptly delivered to the Company. The Company may not issue new Securities
to replace Securities that it has paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.12. CUSIP
Numbers. The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in
use), and the Trustee shall use CUSIP numbers in notices of redemption or
exchange as a convenience to Holders; provided that any
such notice shall state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any such
notice and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company shall promptly notify the
Trustee of any change in the CUSIP numbers.
8
SECTION 2.13. Defaulted
Interest. If the
Company fails to make a payment of interest on any series of Securities, it
shall pay such defaulted interest plus (to the extent lawful) any interest
payable on the defaulted interest, in any lawful manner. It may elect to
pay such defaulted interest, plus any such interest payable on it, to the
Persons who are Holders of such Securities on which the interest is due on a
subsequent special record date. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each such
Security. The Company shall fix any such record date and payment date for
such payment. At least 15 days before any such record date, the Company
shall mail to Holders affected thereby a notice that states the record date,
payment date, and amount of such interest to be paid.
SECTION 2.14. Special
Record Dates. The Company may, but
shall not be obligated to, set a record date for the purpose of determining the
identity of Holders entitled to consent to any supplement, amendment or waiver
permitted by this Indenture. If a record date is fixed, the Holders of
Securities of that series outstanding on such record date, and no other Holders,
shall be entitled to consent to such supplement, amendment or waiver or revoke
any consent previously given, whether or not such Holders remain Holders after
such record date. No consent shall be valid or effective for more than 90 days
after such record date unless consents from Holders of the principal amount of
Securities of that series required hereunder for such amendment or waiver to be
effective shall have also been given and not revoked within such 90-day
period.
ARTICLE
III
.B
REDEMPTION
SECTION 3.01. Notices
to Trustee.
If the Company elects to redeem Securities of any series pursuant to any
optional redemption provisions thereof, it shall notify the Trustee of the
intended Redemption Date and the principal amount of Securities of that series
to be redeemed.
The
Company shall give each notice provided for in this Section and an Officers’
Certificate at least 45 days before the Redemption Date (unless a shorter period
shall be satisfactory to the Trustee).
SECTION 3.02. Selection
of Securities to Be Redeemed. If fewer than all the
Securities of any series are to be redeemed, the Trustee shall select the
Securities of that series to be redeemed from the outstanding Securities of that
series to be redeemed by a method that complies with the requirements of any
exchange on which the Securities of that series are listed, or, if the
Securities of that series are not listed on an exchange, on a pro rata basis or
by lot, which in any case shall be in accordance with a method the Trustee
considers fair and appropriate.
Except as
otherwise provided as to any particular series of Securities, Securities and
portions thereof that the Trustee selects shall be in amounts equal to the
minimum authorized denomination for Securities of the series to be redeemed or
any integral multiple thereof. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly in writing of the
Securities or portions of Securities to be called for redemption.
SECTION 3.03. Notice of
Redemption.
At least 30 days but not more than 60 days before the Redemption Date, the
Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed at the address of such Holder appearing in
the register.
The
notice shall identify the Securities of the series to be redeemed and shall
state:
(1)
the Redemption Date;
(2)
the redemption price fixed in accordance with
the terms of the Securities of the series to be redeemed, plus accrued interest,
if any, to the date fixed for redemption (the “Redemption
Price”);
(3)
if any Security is being redeemed in part, the
portion of the principal amount of such Security to be redeemed and that, after
the Redemption Date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(4)
the name and address of the Paying
Agent;
9
(5)
that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(6)
that, unless the Company defaults in payment
of the Redemption Price, interest on Securities called for redemption ceases to
accrue on and after the Redemption Date; and
(7)
the CUSIP number, if any, of the Securities to
be redeemed.
At the
Company’s written request, the Trustee shall give the notice of redemption in
the Company’s name and at its expense. The notice mailed in the manner herein
provided shall be conclusively presumed to have been duly given whether or not
the Holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the Holder of any Security shall not affect
the validity of the proceeding for the redemption of any other
Security.
SECTION 3.04. Effect of
Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the Redemption Date at the Redemption Price. Upon surrender to the Paying Agent,
such Securities shall be paid at the Redemption Price.
SECTION 3.05. Deposit
of Redemption Price. On or before the
Redemption Date, the Company shall deposit with the Trustee or with the Paying
Agent (or if the Company or any Subsidiary of the Company is acting as its own
Paying Agent, the Company or such Subsidiary shall segregate and hold in trust)
money sufficient to pay the Redemption Price on all Securities to be redeemed on
that date other than Securities or portions thereof called for redemption on
that date which have been delivered by the Company to the Trustee for
cancellation. The Paying Agent shall promptly return to the Company any money
not required for that purpose.
SECTION 3.06. Securities
Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall issue
and the Trustee shall authenticate for the Holder at the expense of the Company,
a new Security of the same series equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE
IV
COVENANTS
SECTION 4.01. Payment
of Securities.
The Company shall pay or cause to be paid the principal of and interest on the
Securities on the dates and in the manner provided in this Indenture and the
Securities. Principal and interest shall be considered paid on the date
due if the Paying Agent, if other than the Company or an Affiliate, holds as of
11:00 a.m. New York time on that date immediately available funds designated for
and sufficient to pay all principal and interest then due. To the extent lawful,
the Company shall pay interest on overdue principal and overdue installments of
interest at the rate per annum borne by the applicable series of
Securities.
SECTION 4.02. Maintenance
of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of New
York, or in [_______________], an office or agency (which may be an office of
the Trustee or an affiliate of the Trustee or registrar) where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The
Company may also from time to time designate one or more other offices or
agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, the City
of New York, or [___________], for such purposes. The Company shall 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.
The
Company hereby designates the Corporate Trust Office of the Trustee as one such
office or agency of the Company in accordance with Section
2.03.
10
SECTION 4.03. SEC
Reports. The
Company shall deliver to the Trustee within 15 days after it files them with the
SEC 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 SEC may by
rules and regulations prescribe) which the Company is required to file with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act; provided, however, the
Company shall not be required to deliver to the Trustee any materials for which
the Company has sought and received confidential treatment by the SEC. The
Company also shall comply with the other provisions of TIA Section 314
(a).
SECTION 4.04. Compliance
Certificate. The Company shall
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officers’ Certificate stating that in the course of the performance
by the signers of their duties as officers of the Company, they would normally
have knowledge of any failure by the Company to comply with all conditions, or
default by the Company with respect to any covenants, under this Indenture, and
further stating whether or not they have knowledge of any such failure or
default and, if so, specifying each such failure or default and the nature
thereof. For purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice provided for in
this Indenture. The certificate need not comply with Section
10.04.
SECTION 4.05. Taxes. The Company shall pay prior
to delinquency, all material taxes, assessments, and governmental levies except
as contested in good faith by appropriate proceedings.
SECTION 4.06. Corporate
Existence.
Subject to Article
V hereof, the Company shall do or cause to be done all things necessary
to preserve and keep in full force and effect (i) its corporate existence and
(ii) the material rights (charter and statutory), licenses and franchises of the
Company and its Subsidiaries taken as a whole; provided, however, that the
Company shall not be required to preserve any such right, license or franchise
if the Board of Directors or management of the Company shall determine that the
preservation thereof is no longer in the best interests of the Company, and that
the loss thereof is not adverse in any material respect to the
Holders.
ARTICLE
V
MERGER,
ETC.
SECTION 5.01. When
Company May Merge, etc. (a) The Company shall
not consolidate or merge with or into, or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its assets to, any Person
unless: (i) the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment, transfer, lease,
conveyance or disposition has been made, is a corporation organized and existing
under the laws of the United States of America, any state thereof or the
District of Columbia; (ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or disposition has been made, assumes by
supplemental indenture satisfactory in form to the Trustee all the obligations
of the Company under the Securities and this Indenture; and (iii) immediately
after such transaction, and giving effect thereto, no Default or Event of
Default shall have occurred and be continuing. Notwithstanding the foregoing,
the Company may merge with another Person or acquire by purchase or otherwise
all or any part of the property or assets of any other corporation or Person in
a transaction in which the surviving entity is the Company.
(b)
In connection with any consolidation, merger,
sale, assignment, transfer or lease contemplated by this Section 5.01, the
Company shall deliver, or cause to be delivered, to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers’ Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, sale,
assignment, transfer or lease and the supplemental indenture in respect thereof
comply with Article
V and the TIA and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 5.02. Successor
Corporation Substituted. Upon any consolidation or
merger, or any sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all the assets of the Company in accordance
with Section
5.01, the successor corporation formed by such consolidation or into
which the Company is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor corporation had been named as the
Company herein. In the event of any such sale or conveyance, but not any
such lease, the Company or any successor corporation which thereafter shall have
become such in the manner described in this Article V shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be dissolved, wound up or liquidated.
11
ARTICLE
VI
DEFAULTS
AND REMEDIES
SECTION 6.01. Events of
Default. An
“Event of Default” occurs with respect to Securities of any particular series,
unless in the establishing Board Resolutions, Officers’ Certificate or
supplemental indenture hereto, it is provided that such series shall not have
the benefit of any such Event of Default, when any of the following
occurs:
(i)
the Company defaults in the payment of
interest on any Security of that series when it becomes due and payable and such
default continues for a period of 30 days;
(ii)
the Company defaults in the payment of the principal
of any Security of that series when the same becomes due and payable at
maturity, upon acceleration, redemption or otherwise;
(iii)
the Company fails to comply with any of its other
agreements or covenants in, or provisions of, the Securities of that series or
this Indenture and the Default continues for the period and after the notice
specified below;
(iv)
the Company pursuant to or within the meaning of any
Bankruptcy Law: (A) commences a voluntary case or proceeding, (B) consents to
the entry of an order for relief against it in an involuntary case or
proceeding, (C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (D) makes a general assignment for the
benefit of its creditors; or
(v)
a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that: (A) is for relief against the
Company in an involuntary case or proceeding, (B) appoints a Custodian for the
Company or for all or substantially all of the Company’s property, or (C) orders
the liquidation of the Company;
and in
case of (v) the order or decree remains unstayed and in effect for 60
days.
The term
“Bankruptcy
Law” means Title 11 of the U.S. Code or any similar Federal or state law
for the relief of debtors. The term “Custodian” means any
receiver, Trustee, assignee, liquidator, sequestrator or similar official under
any Bankruptcy Law.
A Default
under clause (iii) of this Section 6.01 is not an Event of Default with respect
to a particular series of Securities until the Trustee notifies the Company in
writing, or the Holders of at least 25% in principal amount of the outstanding
Securities of that series notify the Company and the Trustee, in writing, of the
Default, and the Company does not cure the Default within 30 days after receipt
of the notice. The notice must specify the Default, demand that it be remedied
and state that the notice is a “Notice of Default”.
SECTION 6.02. Acceleration. If an Event of Default
(other than an Event of Default specified in clause (iv) or (v) of Section 6.01)
occurs and is continuing, the Trustee or the Holders of at least 25% of the
principal amount of the outstanding Securities of that series, by written notice
to the Company may declare due and payable 100% of the principal amount (or, in
the case of Original Issue Discount Securities, such lesser amount as may be
provided for in such Securities) of the Securities of that series plus any
accrued interest to the date of payment. Upon a declaration of acceleration,
such principal (or such lesser amount) and accrued interest to the date of
payment shall be due and payable. If an Event of Default specified in clause
(iv) or (v) of Section 6.01 occurs, all unpaid principal and accrued interest on
the Securities shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
The
Holders of a majority of the outstanding principal amount of the Securities of
that series by written notice to the Trustee may rescind an acceleration and its
consequences if (i) all existing Events of Default other than the nonpayment of
principal (or such lesser amount) of or interest on the Securities of that
series which have become due solely because of the acceleration, have been cured
or waived and (ii) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction.
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SECTION 6.03. Other
Remedies.
If an Event of Default occurs and is continuing with respect to any series of
Securities, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of or interest on the Securities
of that series or to enforce the performance of any provision of the Securities
of that series or this Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the
Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon the Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive
of any other remedy. All remedies are cumulative to the extent permitted
by law.
SECTION 6.04. Waiver of
Past Defaults. Subject to Sections 6.07 and
9.02, the
Holders of at least a majority in principal amount of the outstanding Securities
of any series by notice to the Trustee may waive an existing Default or Event of
Default and its consequences with respect to that series, except a Default in
the nonpayment of the principal of or interest on any Security of that series
(provided,
however, that
the Holders of a majority in principal amount of the then outstanding Securities
of any series may rescind an acceleration and its consequences, including any
related payment default that resulted from such acceleration) . When a Default
or Event of Default is waived, it is cured and ceases.
SECTION 6.05. Control
by Majority. The Holders of at
least a majority in principal amount of the outstanding Securities of any series
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
it. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders or that may involve the Trustee in
personal liability. The Trustee may take any other action which it deems proper
which is not inconsistent with any such direction.
SECTION 6.06. Limitation
on Suits. A
Holder of Securities of any series may not pursue a remedy with respect to this
Indenture or the Securities of that series unless: (i) the Holder gives to the
Trustee written notice of a continuing Event of Default with respect to such
series; (ii) the Holders of at least 25% in principal amount of the outstanding
Securities of that series make a written request to the Trustee to pursue the
remedy; (iii) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability, cost or expense; (iv) the Trustee
does not comply with the request within 60 days after receipt of the request and
the offer of indemnity; and (v) during such 60-day period the Holders of at
least a majority in principal amount of the outstanding Securities of that
series do not give the Trustee a direction inconsistent with the
request.
A Holder
may not use this Indenture to prejudice the rights of another Holder or to
obtain a preference or priority over another Holder.
SECTION 6.07. Rights of
Holders To Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of principal of or interest, if any, on the Security on or after
the respective due dates expressed or provided for in the Security, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of the
Holder.
SECTION 6.08. Collection
Suit by Trustee.
If an Event of Default specified in Section 6.01(i) or
(ii) occurs and
is continuing with respect to Securities of any series, the Trustee may recover
judgment in its own name and as Trustee of an express trust against the Company
for the whole amount of principal (or such portion of the principal as may be
specified as due upon acceleration at that time in the terms of that series of
Securities) and accrued interest, if any, remaining unpaid on the outstanding
Securities of that series, together with (to the extent lawful) interest on
overdue principal and interest, and such further amount as shall be sufficient
to cover the costs and, to the extent lawful, expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under
Section
7.07.
SECTION 6.09. Trustee
May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in
any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its creditors or its property and shall be entitled and empowered
to participate as a member, voting or otherwise, of any official committee of
creditors appointed in such matter and to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same, and any custodian in any such judicial proceedings is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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SECTION 6.10. Priorities. If the Trustee
collects any money pursuant to this Article VI, it shall
pay out the money in the following order:
FIRST: to
the Trustee, its agents and attorneys for amounts due under Section 7.07,
including payment of all compensation, expense and liabilities incurred, and all
advances made by the Trustee and the costs and expenses of
collection;
SECOND:
to Holders of any particular series of
Securities for amounts due and unpaid on the Securities of such series for
principal and interest, if any, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities of such series
for principal and interest, respectively; and
THIRD: to
the Company or any other obligors on the Securities of that series, as their
interests may appear, or as a court of competent jurisdiction may
direct.
The
Trustee, upon prior written notice to the Company, may fix a record date and
payment date for any payment to Holders pursuant to this Section 6.10. The
Trustee shall notify the Company in writing reasonably in advance of any such
record date and payment date.
SECTION 6.11. Undertaking
for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a
suit by Holders of more than 10% in principal amount of the outstanding
Securities of that series.
ARTICLE
VII
TRUSTEE
SECTION 7.01. Duties of
Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person’s own
affairs.
(b)
Except during the continuance of an Event of
Default: (1) the Trustee need perform only those duties that are specifically
set forth in this Indenture or the TIA, and no implied covenants or obligations
shall be read into this Indenture against the Trustee and (2) in the absence of
bad faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not, on their face, they conform to the
requirements of this Indenture.
(c)
The Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct except that: (1) this paragraph does not limit the effect of
paragraph (b) of this Section 7.01, (2) the
Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer or other officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts and (3) the Trustee shall not be
liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.05.
(d)
Whether or not therein expressly so provided,
every provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b), (c) and (e) of this Section
7.01.
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(e)
No provision of this Indenture shall require
the Trustee to expend or risk its own funds or incur any liability. The
Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability, cost or
expense (including, without limitation, reasonable fees of
counsel).
(f)
The Trustee shall not be obligated to pay
interest on any money or other assets received by it unless otherwise agreed in
writing with the Company. Assets held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
SECTION 7.02. Rights of
Trustee.
Subject to Section
7.01:
(a)
The Trustee may conclusively rely on any
document (whether in its original or facsimile form) reasonably believed by it
to be genuine and to have been signed or presented by the proper person.
The Trustee need not investigate any fact or matter stated in the
document. The Trustee shall receive and retain financial reports and
statements of the Company as provided herein, but shall have no duty to review
or analyze such reports or statements to determine compliance under covenants or
other obligations of the Company.
(b)
Before the Trustee acts or refrains from acting, it
may require an Officers’ Certificate and/or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on an Officers’ Certificate or Opinion of
Counsel.
(c)
The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d)
The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers, unless the Trustee’s conduct constitutes willful
misconduct or negligence.
(e)
The Trustee may consult with counsel of its
selection, and the advice or opinion of counsel with respect to legal matters
relating to this Indenture and the Securities shall be full and complete
authorization and protection from liability in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f)
The Trustee shall not be deemed to have notice
of any Default or Event of Default unless a Trust Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of the
Trustee and such notice references the Securities and this
Indenture.
(g)
The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
(h)
The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
(i)
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 request,
and in the absence of bad faith or willful misconduct on its part, rely upon an
Officers’ Certificate and an Opinion of Counsel.
(j)
The Trustee may request that the Company
deliver an Officers’ Certificate setting for the names of individuals and/or
titles of officers authorized at such times to take specified actions pursuant
to this Indenture, which Officers’ Certificate may be signed by any person
specified as so authorized in any such certificate previously delivered and not
superseded.
15
SECTION
7.03. Individual
Rights of Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Securities and may otherwise deal with the Company or an Affiliate of the
Company with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. However, the Trustee is subject to
Sections 7.10
and 7.11.
SECTION 7.04. Trustee’s
Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company’s use
of the proceeds from the Securities and it shall not be responsible for any
statement in the Securities other than its certificate of
authentication.
SECTION 7.05. Notice of
Defaults.
If a Default or Event of Default with respect to the Securities of any
series occurs and is continuing, and if it is known to the Trustee, the Trustee
shall mail to Holders a notice of the Default or Event of Default within 90 days
after the occurrence thereof. Except in the case of a Default or Event of
Default in payment of any such Security, the Trustee may withhold the notice if
and so long as it in good faith determines that withholding the notice is in the
interests of the Holders.
SECTION 7.06. Reports
by Trustee to Holders. The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required by TIA Section 3.13 at the times and in the
manner provided by the TIA, which shall initially be not less than every twelve
months commencing on and may be dated as of a date up to 75 days prior to such
transmission.
A copy of
each report at the time of its mailing to Holders shall be filed with the SEC,
if required, and each stock exchange, if any, on which the Securities are
listed. The Company shall promptly notify the Trustee when the Securities
of any series are listed on any stock exchange.
SECTION 7.07. Compensation
and Indemnity. The Company shall be
liable for paying to the Trustee from time to time reasonable compensation for
its acceptance of this Indenture and services hereunder as the Company and the
Trustee shall from time to time agree in writing. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall be liable for reimbursing the Trustee
upon request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, costs of preparing and reviewing reports,
certificates and other documents, costs of preparation and mailing of notices to
Securityholders and reasonable costs of counsel retained by the Trustee in
connection with the delivery of an Opinion of Counsel or otherwise, in addition
to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee’s agents, counsel, accountants and experts. The Company shall
indemnify the Trustee against any and all loss, liability, damages, claims or
expense (including reasonable attorneys’ fees and expenses) incurred by it
without negligence, bad faith or willful misconduct on its part in connection
with the administration of this trust and the performance of its duties
hereunder, including the costs and expense of enforcing this Indenture
(including this Section 7.07) and of
defending itself against any claims (whether asserted by any Securityholder, the
Company or otherwise). Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim, and the Trustee shall provide reasonable cooperation at
the Company’s expense in the defense. The Trustee may have separate
counsel and the Company shall pay the fees and expenses of such counsel, provided that the
Company shall not be required to pay such fees and expenses if it assumes the
Trustee’s defense, and, in the reasonable judgment of outside counsel to the
Trustee, there is no conflict of interest between the Company and the Trustee in
connection with such defense. Notwithstanding the foregoing, the Company
need not reimburse any expense or indemnify against any loss, liability or
expense which is finally determined by a court of competent jurisdiction to have
been incurred by the Trustee through the Trustee’s own willful misconduct,
negligence or bad faith.
To secure
the Company’s payment obligations in this Section, the Trustee shall have a lien
prior to the Securities on all money or property held or collected by the
Trustee other than money or property held in trust to pay principal of and
interest on particular Securities. Such lien shall survive the
satisfaction and discharge of this Indenture. The Trustee’s right to
receive payment of any amounts due under this Section 7.07 shall
not be subordinate to any other liability or Indebtedness of the
Company.
The
Company’s and the Subsidiary Guarantors’ payment obligations pursuant to this
Section shall survive the discharge of this Indenture. When the Trustee
incurs expenses after the occurrence of an Event of Default specified in clause
(iv) or clause (v) of Section 6.01 with
respect to the Company, the expenses are intended to constitute expenses of
administration under any Bankruptcy Law.
16
SECTION 7.08. Replacement
of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section
7.08.
The
Trustee may resign and be discharged from the trust hereby created with respect
to one or more or all series of Securities by so notifying the Company in
writing. The Holders of a majority in principal amount of the then
outstanding Securities of any series may remove the Trustee with respect to that
series by so notifying the Trustee and the Company in writing. The Company
may remove the Trustee with respect to one or more or all series of Securities
if: (i) the Trustee fails to comply with Section 7.10 or TIA
Section 310; (ii) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii) a Custodian or public officer takes charge of the Trustee or its property;
or (iv) the Trustee becomes incapable of acting.
If, as to
any series of Securities, the Trustee resigns or is removed or if a vacancy
exists in the office of the Trustee for any reason, the Company shall promptly
appoint a successor Trustee for that series of Securities. The Trustee
shall be entitled to payment of its fees and reimbursement of its expenses while
acting as Trustee. Within one year after the successor Trustee takes
office, the Holders of at least a majority in principal amount of then
outstanding Securities of that series may appoint a successor Trustee to replace
the successor Trustee appointed by the Company.
Any
Holder of Securities of that series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee if the Trustee fails to comply with Section
7.10.
A
successor Trustee as to any series of Securities shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The Company shall mail a
notice of the successor Trustee’s succession to the Holders. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.07.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company’s obligations under Section 7.07 hereof
shall continue for the benefit of the retiring Trustee with respect to expenses,
losses and liabilities incurred by it prior to such replacement.
In case
of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) shall contain such
provisions as shall be necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary or desirable to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee; provided, however, that nothing
herein or in such supplemental indenture shall constitute such Trustees to be
co-Trustees of the same trust and that each such Trustee shall be Trustee of a
trust hereunder separate and apart from any trust hereunder administered by any
other such Trustee.
Upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates.
SECTION 7.09. Successor
Trustee by Merger, Etc. Subject to
Section 7.10, if the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the successor entity without any
further act shall be the successor Trustee as to that series of
Securities.
SECTION 7.10. Eligibility;
Disqualification. Each series of
Securities shall always have a Trustee who satisfies the requirements of TIA
Section 310(a) (1), (2) and (5). The Trustee as to any series of Securities
shall always have a combined capital and surplus of at least $100 million as set
forth in its most recent published annual report of condition. The Trustee
is subject to TIA Section 310(b).
17
SECTION 7.11. Preferential
Collection of Claims Against the Company. The Trustee is subject to
TIA Section 311(a), excluding any creditor relationship listed in TIA Section
311 (b). A Trustee who has resigned or been removed shall be subject to
TIA Section 311(a) to the extent indicated therein.
ARTICLE
VIII
DISCHARGE
OF INDENTURE
SECTION 8.01. Satisfaction
and Discharge of Indenture. This Indenture shall
cease to be of further effect (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a)
either
(i)
all Securities theretofore authenticated and
delivered (other than Securities that have been destroyed, lost or stolen and
that have been replaced or paid) have been delivered to the Trustee for
cancellation; or
(ii)
all such Securities not theretofore delivered
to the Trustee for cancellation
(1)
have become due and payable, or
(2)
will become due and payable at their stated
maturity within one year, or
(3)
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,
or
(4)
are deemed paid and discharged pursuant to
Section 8.03, as applicable;
and the
Company, in the case of (1), (2) or (3) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust an amount sufficient for the
purpose of paying and discharging the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of Securities which have
become due and payable on or prior to the date of such deposit) or to the stated
maturity or redemption date, as the case may be;
(b)
the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(c)
the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 7.07, and, if
money shall have been deposited with the Trustee pursuant to clause (a) of this
Section or if money or obligations shall have been deposited with or received by
the Trustee pursuant to Section 8.03, the
obligations of the Trustee under Section 8.02 and
Section 8.05
shall survive.
SECTION
8.02. Application of Trust Funds;
Indemnification.
(a)
Subject to the provisions of Section 8.05, all
money deposited with the Trustee pursuant to Section 8.01, all
money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 8.03 or
8.04 and all
money received by the Trustee in respect of U.S. Government Obligations
deposited with the Trustee pursuant to Section 8.03 or 8.04, shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with or received by the Trustee or
to make mandatory sinking fund payments or analogous payments as contemplated by
Sections 8.03
and 8.04.
18
(b)
The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations deposited pursuant to Sections 8.03 or
8.04 or the
interest and principal received in respect of such obligations other than any
payable by or on behalf of Holders.
(c)
The Trustee shall deliver or pay to the
Company from time to time upon the request of the Company any U.S. Government
Obligations or money held by it as provided in Sections 8.03 or
8.04 which, in
the opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would have been
required to be deposited for the purpose for which such U.S. Government
Obligations or money were deposited or received. This provision shall not
authorize the sale by the Trustee of any U.S. Government Obligations held under
this Indenture.
SECTION 8.03. Legal
Defeasance of Securities of any Series. Unless this Section 8.03 is
otherwise specified to be inapplicable to Securities of any series, the Company
shall be deemed to have paid and discharged the entire indebtedness on all the
outstanding Securities of any such series on the 91st day after the date of the
deposit referred to in subparagraph (a) hereof, and the provisions of this
Indenture, as it relates to such outstanding Securities of such series, shall no
longer be in effect (and the Trustee, at the expense of the Company, shall, upon
the request of the Company, execute proper instruments acknowledging the same),
except as to:
(i)
the rights of Holders of Securities of such
series to receive, from the trust funds described in subparagraph (d) hereof,
(x) payment of the principal of an each installment of principal of or interest
on the outstanding Securities of such series on the stated maturity of such
principal of or interest and (y) the benefit of any mandatory sinking fund
payments applicable to the Securities of such series on the day on which such
payments are due and payable in accordance with the terms of this Indenture and
the Securities of such series;
(ii)
the Company’s obligations with respect to such
Securities of such series under Sections 2.03, 2.06 and 2.07;
and
(iii)
the rights, powers, trust and immunities of the
Trustee hereunder and the duties of the Trustee under Section 8.02 and the
duty of the Trustee to authenticate Securities of such series issued on
registration of transfer of exchange;
provided
that, the following conditions shall have been satisfied:
(a)
the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in trust for the purpose
of making the following payments, specifically pledged as Security for and
dedicated solely to the benefit of the Holders of such Securities, cash in U.S.
Dollars and/or U.S. Government Obligations which through the payment of interest
and principal in respect thereof, in accordance with their terms, will provide
(and without reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment of money, an
amount in cash, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal
(including mandatory sinking fund or analogous payments) of and interest, if
any, on all the Securities of such series on the dates such installments of
interest or principal are due;
(b)
such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture;
(c)
no Default or Event of Default with respect to the
Securities of such series shall have occurred on the date of such deposit and 91
days shall have passed after the deposit has been made, and, during such 91 day
period, no Default specified in Section 6.0l(iv) or (v) with respect to the
Company occurs which is continuing at the end of such period;
(d)
the Company shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel to the effect that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount and in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred;
19
(e)
the Company shall have delivered to the Trustee an
Officers’ Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of the Securities of such series over any
other creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company;
(f)
such deposit shall not result in the trust arising
from such deposit constituting an investment company (as defined in the
Investment Company Act of 1940, as amended), or such trust shall be qualified
under such Act or exempt from regulation thereunder; and
(g)
the Company shall have delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent relating to the defeasance contemplated by this Section
have been complied with.
SECTION 8.04. Covenant
Defeasance.
Unless this Section
8.04 is otherwise inapplicable to Securities of any series, on and after
the 91st day after the date of the deposit referred to in subparagraph (a)
hereof, the Company may omit to comply with any term, provision or condition set
forth under Sections
4.03, 4.04 and 4.05 as well as any
additional covenants contained in a supplemental indenture hereto for a
particular series of Securities or a Board Resolution or an Officers’
Certificate delivered pursuant to Section 2.01 (and the
failure to comply with any such provisions shall not constitute a Default or
Event of Default under Section 6.01) and the
occurrence of any event described in clause (e) of Section 6.01 shall
not constitute a Default or Event of Default hereunder, with respect to the
Securities of such series, provided that the following conditions shall have
been satisfied:
(a)
With reference to this Section 8.04, the
Company has deposited or caused to be irrevocably deposited (except as provided
in Section
8.03) with the Trustee as trust funds in trust, specifically pledged as
Security for, and dedicated solely to, the benefit of the Holders of such
Securities, cash in U.S. Dollars and/or U.S. Government Obligations which
through the payment of interest and principal in respect thereof, in accordance
with their terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day before the
due date of any payment of money, an amount in cash, sufficient, in the opinion
of a nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
principal and interest, if any, on and any mandatory sinking fund in respect of
the Securities of such series on the dates such installments of interest or
principal are due;
(b)
Such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture;
(c)
No Default or Event of Default with respect to
the Securities of such series shall have occurred on the date of such deposit
and 91 days shall have passed after the deposit has been made, and, during such
91 day period, no Default specified in Section 6.01(iv) or (v) with respect to
the Company occurs which is continuing at the end of such period;
(d)
The Company shall have delivered to the Trustee an
Opinion of Counsel confirming that Holders of the Securities of such series will
not recognize income, gain or loss for federal income tax purposes as a result
of such deposit and 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 deposit and defeasance had not Occurred;
(e)
The Company shall have delivered to the Trustee an
Officers’ Certificate stating the deposit was not made by the Company with the
intent of preferring the Holders of the Securities of such series over any other
creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company; and
(f)
The Company shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance contemplated
by this Section have been complied with.
SECTION 8.05. Repayment
to Company.
The Trustee and the Paying Agent shall pay to the Company upon request any money
held by them for the payment of principal or interest that remains unclaimed for
two years after the date upon which such payment shall have become due. After
payment to the Company, Holders entitled to the money must look to the Company
for payment as general creditors unless an applicable abandoned property law
designates another Person.
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ARTICLE
IX
AMENDMENTS,
SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without
Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without the consent of any
Holder: (i) to cure any ambiguity, defect or inconsistency or make any change
required to qualify the indenture under the TIA, provided that such change does
not adversely affect the rights hereunder of any Holder in any material respect;
(ii) to comply with Section 5.01; (iii)
to provide for uncertificated Securities in addition to certificated Securities;
(iv) to make any change that does not adversely affect in any material respect
the rights hereunder of any Holder; (v) to add to, change or eliminate any of
the provisions of this Indenture in respect of one or more series of Securities,
provided, however, that any
such addition, change or elimination (A) shall neither (i) apply to any Security
of any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of the
holder of any such Security with respect to such provision or (B) shall become
effective only when there is no outstanding Security of any series created prior
to the execution of such supplemental indenture and entitled to the benefit of
such provisions; or (vi) to establish additional series of Securities as
permitted by Section
2.01.
SECTION 9.02. With
Consent of Holders. The Company and the
Trustee as to any series of Securities may amend this Indenture or the
Securities of that series or waive compliance in any particular instance with
any provision of this Indenture or the Securities of that series, in each case
with the written consent of the Holders of at least a majority in principal
amount of the then outstanding Securities of that series.
Without
the consent of each Holder affected, an amendment or waiver under this Section
may not: (i) reduce the principal amount of Securities, whose Holders must
consent to an amendment or waiver; (ii) reduce the rate of or change the time
for payment of interest on any Security; (iii) change the date on which any
Security may be subject to redemption or repurchase, or reduce the redemption or
repurchase price therefor; (iv) make any Security payable in currency other than
that stated in the Security; or (v) make any change in Section 6.04, 6.07 or this
sentence.
It shall
not be necessary for the consent of the Holders under this Section to approve
the particular form of any proposed amendment or waiver, but it shall be
sufficient if such consent approves the substance thereof.
An
amendment or waiver under this Section which waives, changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
The
Company will mail supplemental indentures to Holders upon request. Any failure
of the Company to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture or
waiver.
SECTION 9.03. Compliance
with Trust Indenture Act. Every amendment to
this Indenture or the Securities shall be set forth in a supplemental indenture
that complies with the TIA as then in effect.
SECTION 9.04. Revocation
and Effect of Consents. Until an amendment or
waiver becomes effective, a consent to it by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder’s
Security, even if notation of the consent is not made on any Security; provided, however, that unless
a record date shall have been established pursuant to Section 2.14, any
such Holder or subsequent Holder may revoke the consent as to his Security or
portion of a Security if the Trustee receives written notice of revocation
before the date the amendment or waiver becomes effective. An amendment or
waiver becomes effective on receipt by the Trustee of consents from the Holders
of the requisite percentage principal amount of the outstanding Securities of
any series, and thereafter shall bind every Holder of Securities of that
series.
SECTION 9.05. Notation
on or Exchange of Securities. If an amendment or
waiver changes the terms of a Security: (a) the Trustee may require the Holder
of the Security to deliver such Security to the Trustee, the Trustee may place
an appropriate notation on the Security about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Security
thereafter authenticated; or (b) if the Company or the Trustee so determines,
the Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
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SECTION 9.06. Trustee
to Sign Amendment, etc. The Trustee shall sign
any amendment authorized pursuant to this Article IX if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not sign
it. In signing or refusing to sign such amendment, the Trustee shall be
entitled to receive and shall be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that such amendment
is authorized or permitted by this Indenture and that such amendment, supplement
or waiver is the legal, valid and binding obligation of the Company, enforceable
against it in accordance with its terms, subject to customary exceptions, and
complies with the provisions hereof (including Section
9.03).
ARTICLE
X
MISCELLANEOUS
SECTION 10.01. Trust
Indenture Act Controls. This Indenture is subject to
the provisions of the TIA which are required to be part of this Indenture, and
shall, to the extent applicable, be governed by such provisions.
SECTION 10.02. Notices. Any notice or communication
to the Company or the Trustee is duly given if in writing and delivered in
person or mailed by first-class mail to the address set forth
below:
If to the
Company:
0xx Xxxxx,
Xxxxxxx X, Xxxxx A. No. 181
South
Taibei Road, Xi’an, Shaanxi Province
People’s
Republic of China 710065
Attention:
Chief Financial Officer
with a
copy to:
Xxxxx
Xxxxxxx LLP
0 Xxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxxxx X. Xxxx, Esq.
If to the
Trustee:
[____________________]
_____________________
_____________________
_____________________
Attention:
____________
With a
copy to:
_____________________
_____________________
_____________________
Attention:
____________
The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any
notice or communication to a Holder shall be mailed by first-class mail to his
address shown on the register kept by the registrar. Failure to mail a
notice or communication to a Holder or any defect in such notice or
communication shall not affect its sufficiency with respect to other
Holders.
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If a
notice or communication is mailed or sent in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it,
except that notice to the Trustee shall only be effective upon receipt thereof
by the Trustee.
If the
Company mails a notice or communication to Holders, it shall mail a copy to the
Trustee and each Agent at the same time.
SECTION 10.03. Communication
by Holders with Other Holders. Holders may communicate
pursuant to TIA Section 312(b) with other Holders with respect to their rights
under this Indenture or the Securities. The Company, the Trustee, the registrar
and anyone else shall have the protection of TIA Section 312 (c)
SECTION 10.04. Certificate
and Opinion as to Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee: (1) an Officers’
Certificate (which shall include the statements set forth in Section 10.05)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been complied with; and (ii) an Opinion of Counsel (which shall
include the statements set forth in Section 10.05) stating that, in the opinion
of such counsel, all such conditions precedent and covenants have been complied
with.
SECTION 10.05. Statements
Required in Certificate or Opinion. Each certificate (other than
certificates provided pursuant to Section 4.04) or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture shall include: (i) a statement that the person making such
certificate or opinion has read such covenant or condition; (ii) 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; (iii) a statement that, in the opinion of such person, he or she has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (iv) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with; provided, however, that with
respect to matters of fact, an Opinion of Counsel may rely on an Officers’
Certificate or certificate of public officials.
SECTION 10.06. Rules by
Trustee and Agents. The Trustee may make
reasonable rules for action by or for a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for
its functions.
SECTION 10.07. Legal
Holidays. A
“Legal Holiday”
is a Saturday, a Sunday or a day on which banking institutions in the City of
New York are not required or authorized to be open. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
SECTION
10.08. Duplicate
Originals. The parties may
sign any number of copies of this Indenture. One signed copy is
enough to prove this Indenture.
SECTION
10.09. Governing
Law. The internal laws
of the State of New York shall govern this Indenture and the Securities, without
regard to the conflicts of Law rules thereof.
SECTION
10.10. No
Adverse Interpretation of Other Agreements. This Indenture
may not be used to interpret another indenture, loan or debt agreement of the
Company or any subsidiary. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
SECTION
10.11. Successors. All agreements of
the Company in this Indenture and the Securities shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION
10.12. Severability. In case any
provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
[Signature
Page Follows]
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SECTION
10.13. Counterpart
Originals. This
Indenture may be signed in one or more counterparts. Each signed copy
shall be an original, but all of them together represent the same
agreement.
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