EXHIBIT 4.6
[FORM OF SUBORDINATED INDENTURE]
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CREDIT SUISSE FIRST BOSTON (USA), INC.
as the Company
and
THE CHASE MANHATTAN BANK
as Trustee
SUBORDINATED INDENTURE
Dated as of __________, 20__
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions...................................................1
Section 1.02. Other Definitions.............................................5
Section 1.03. Incorporation by Reference of Trust Indenture Act.............6
Section 1.04. Rules of Construction.........................................7
ARTICLE II
THE SECURITIES
Section 2.01. Form and Dating...............................................7
Section 2.02. Execution and Authentication..................................7
Section 2.03. Amount Unlimited; Issuable in Series..........................9
Section 2.04. Denomination and Date of Securities; Payments of Interest....11
Section 2.05. Registrar and Paying Agent...................................12
Section 2.06. Paying Agent to Hold Money in Trust..........................12
Section 2.07. Transfer and Exchange........................................13
Section 2.08. Replacement Securities.......................................15
Section 2.09. Outstanding Securities.......................................16
Section 2.10. Temporary Securities.........................................16
Section 2.11. Cancellation.................................................17
Section 2.12. CUSIP Numbers................................................17
Section 2.13. Defaulted Interest...........................................17
Section 2.14. Series May Include Tranches..................................17
Section 2.15. Computation of Interest......................................18
ARTICLE III
REDEMPTION
Section 3.01. Applicability of Article.....................................18
Section 3.02. Notice of Redemption; Partial Redemptions....................18
Section 3.03. Payment of Securities Called for Redemption..................19
Section 3.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption.....................................20
Section 3.05. Mandatory and Optional Sinking Funds.........................20
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TABLE OF CONTENTS
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ARTICLE IV
COVENANTS
Section 4.01. Payment of Securities........................................22
Section 4.02. Maintenance of Office or Agency..............................23
Section 4.03. Certificate to Trustee.......................................24
Section 4.04. Reports by the Company.......................................24
Section 4.05. Calculation of Original Issue Discount.......................25
ARTICLE V
SUCCESSOR CORPORATION
Section 5.01. When Company May Merge, Etc..................................25
Section 5.02. Successor Substituted........................................25
ARTICLE VI
DEFAULT AND REMEDIES
Section 6.01. Events of Default............................................26
Section 6.02. Acceleration.................................................26
Section 6.03. Other Remedies...............................................28
Section 6.04. Waiver of Past Defaults......................................29
Section 6.05. Control by Majority..........................................29
Section 6.06. Limitation on Suits..........................................29
Section 6.07. Rights of Holders to Receive Payment.........................30
Section 6.08. Collection Suit by Trustee...................................30
Section 6.09. Trustee May File Proofs of Claim.............................30
Section 6.10. Application of Proceeds......................................30
Section 6.11. Restoration of Rights and Remedies...........................31
Section 6.12. Undertaking for Costs........................................31
Section 6.13. Rights and Remedies Cumulative...............................32
Section 6.14. Delay or Omission Not Waiver.................................32
ARTICLE VII
TRUSTEE
Section 7.01. General......................................................32
Section 7.02. Certain Rights of Trustee....................................32
Section 7.03. Individual Rights of Trustee.................................34
Section 7.04. Trustee's Disclaimer.........................................34
Section 7.05. Notice of Default............................................35
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TABLE OF CONTENTS
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PAGE
Section 7.06. Reports by Trustee to Holders................................35
Section 7.07. Compensation and Indemnity...................................35
Section 7.08. Replacement of Trustee.......................................36
Section 7.09. Successor Trustee by Merger, Etc.............................37
Section 7.10. Eligibility..................................................37
Section 7.11. Money Held in Trust..........................................37
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.01. Defeasance Within One Year of Payment........................37
Section 8.02. Defeasance...................................................38
Section 8.03. Covenant Defeasance..........................................39
Section 8.04. Application of Trust Money...................................40
Section 8.05. Repayment to Company.........................................40
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders...................................41
Section 9.02. With Consent of Holders......................................41
Section 9.03. Revocation and Effect of Consent.............................42
Section 9.04. Notation on or Exchange of Securities........................43
Section 9.05. Trustee to Sign Amendments, Etc..............................43
Section 9.06. Conformity with Trust Indenture Act..........................43
ARTICLE X
SUBORDINATION
Section 10.01. Securities Subordinated to Senior Indebtedness...............44
Section 10.02. No Payment on Securities in Certain Circumstances............44
Section 10.03. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or
Reorganization of Company....................................46
Section 10.04. Securityholders to Be Subrogated to Rights of Senior
Indebtedness.................................................47
Section 10.05. Obligations of the Company Unconditional.....................47
Section 10.06. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice............................................48
Section 10.07. Application by Trustee of Assets Deposited with It...........48
Section 10.08. Subordination Rights Not Impaired by Acts or Omissions
of the Company, the Trustee or Holders of Senior
Indebtedness.................................................48
Section 10.09. Securityholders Authorize Trustee to Effectuate
Subordination of Securities..................................49
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Section 10.10. Right of Trustee to Hold Senior Indebtedness.................49
Section 10.11. Article 10 Not to Prevent Events of Default..................49
Section 10.12. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.................................................50
ARTICLE XI
MISCELLANEOUS
Section 11.01. Trust Indenture Act of 1939..................................50
Section 11.02. Notices......................................................50
Section 11.03. Certificate and Opinion as to Conditions Precedent...........51
Section 11.04. Statements Required in Certificate or Opinion................51
Section 11.05. Evidence of Ownership........................................52
Section 11.06. Rules by Trustee, Paying Agent or Registrar..................52
Section 11.07. Payment Date Other than a Business Day.......................52
Section 11.08. Governing Law................................................53
Section 11.09. No Adverse Interpretation of Other Agreements................53
Section 11.10. Successors...................................................53
Section 11.11. Duplicate Originals..........................................53
Section 11.12. Separability.................................................53
Section 11.13. Table of Contents, Headings, Etc.............................53
Section 11.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability.....................53
Section 11.15. Judgment Currency............................................53
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SUBORDINATED INDENTURE, dated as of _________, 20__, between Credit Suisse
First Boston (USA), Inc., a Delaware corporation, as the Company, and The Chase
Manhattan Bank, a New York banking corporation, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time of
its debentures, notes or other evidences of indebtedness to be issued in one or
more series (the "Securities") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture
and to provide, among other things, for the authentication, delivery and
administration of the Securities, the Company has duly authorized the execution
and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Company and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities or of any and all series thereof and of the coupons, if any,
appertaining thereto as follows:
Article I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. DEFINITIONS.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Authorized Newspaper" means a newspaper (which, in the case of The City
of New York, will, if practicable, be The Wall Street Journal (Eastern Edition)
and in the case of London, will, if practicable, be the Financial Times (London
Edition)) published in an official language of the country of publication
customarily published at least once a day for at least five days in each
calendar week and of general circulation in The City of New York or London, as
applicable. If it shall be impractical in the opinion of the Trustee to make any
publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
"Board Resolution" means one or more resolutions of the board of directors
of the Company or any authorized committee thereof, certified by the secretary
or an assistant secretary of the Company to have been duly adopted and to be in
full force and effect on the date of certification, and delivered to the
Trustee.
"Business Day" means, with respect to any Security, a day that is not a
day on which banking institutions are authorized or required by law or
regulation to close, in the city (or in any
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of the cities, if more than one) unless otherwise specified, in which amounts
are payable, as specified in the form of such Security.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or equity, including,
without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article 5 of this Indenture
and thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Trustee Administration.
"Default" means any Event of Default as defined in Section 6.01 and any
event that is, or after notice or passage of time or both would be, an Event of
Default.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of one or more Registered Global Securities, the Person
designated as Depositary by the Company pursuant to Section 2.03 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United States
of America at the date of any computation required or permitted hereunder.
"Holder" or "Securityholder" means the registered holder of any Security
with respect to Registered Securities and the bearer of any Unregistered
Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as it may be
amended or supplemented from time to time by one or more indentures supplemental
to this Indenture
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entered into pursuant to the applicable provisions of this Indenture and shall
include the forms and terms of the Securities of each series established as
contemplated pursuant to Sections 2.01 and 2.03.
"Non-U.S. Person" means a non-U.S. person for purposes of the United
States Internal Revenue Code.
"Officer" means, with respect to the Company, the chairman of the board of
directors, the chief executive officer, the president, the chief financial
officer, the chief administrative officer, the chief accounting officer, any
Managing Director, the treasurer or any assistant treasurer, or the secretary or
any assistant secretary.
"Officers' Certificate" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the chief executive
officer, the president, the chief financial officer, the chief administrative
officer, the chief accounting officer or any Managing Director and (ii) by the
treasurer or any assistant treasurer, or the secretary or any assistant
secretary, complying with Section 11.04 and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act and include
(except as otherwise expressly provided in this Indenture) the statements
provided in Section 11.04.
"Opinion of Counsel" means a written opinion signed by legal counsel, who
may be an employee of or counsel to the Company, satisfactory to the Trustee and
complying with Section 11.04. Each such opinion shall comply with Section 314 of
the Trust Indenture Act and include the statements provided in Section 11.04, if
and to the extent required thereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.02.
"Periodic Offering" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the stated maturity or
maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Company or its agents upon the issuance of such
Securities.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's preferred or preference stock, whether
now outstanding or issued after the date of the
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Indenture, including, without limitation, all series and classes of such
preferred or preference stock.
"Principal" of a Security means the principal amount of, and, unless the
context indicates otherwise, includes any premium payable on, the Security.
"Registered Global Security" means a Security evidencing all or a part of
a series of Registered Securities, issued to the Depositary for such series in
accordance with Section 2.02, and bearing the legend prescribed in Section 2.02.
"Registered Security" means any Security registered on the Security
Register (as defined in Section 2.05).
"Responsible Officer" means, when used with respect to the Trustee, any
officer within the Corporate Trust Office including any Vice President, Managing
Director, Assistant Vice President, Secretary, Assistant Secretary or Assistant
Treasurer or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge and familiarity with the particular
subject.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means the principal of and premium, if any, and
interest on (a) all indebtedness of the Company, whether outstanding on the date
of this Indenture or thereafter created, (i) for money borrowed by the Company,
(ii) for money borrowed by, or obligations of, others and either assumed or
guaranteed, directly or indirectly, by the Company, (iii) in respect of letters
of credit and acceptances issued or made by banks, or (iv) constituting purchase
money indebtedness, or indebtedness secured by property included in the
property, plant and equipment accounts of the Company at the time of the
acquisition of such property by the Company, for the payment of which the
Company is directly liable and (b) all deferrals, renewals, extensions and
refunding of, and amendments, modifications and supplements to, any such
indebtedness. As used in the preceding sentence, the term "Purchase Money
Indebtedness" means indebtedness evidenced by a note, debenture, bond or other
instrument (whether or not secured by any lien or other security interest)
issued or assumed as all or a part of the consideration for the acquisition of
property, whether by purchase, merger, consolidation or otherwise, unless by its
terms such indebtedness is subordinated to other indebtedness of the Company.
Notwithstanding anything to the contrary in this Indenture or the Securities,
Senior Indebtedness shall not include, (i) any indebtedness of the Company
which, by its terms or the terms of the instrument creating or evidencing it, is
subordinate in right of payment to or pari passu with the Securities or (ii) any
indebtedness of the Company to a Subsidiary of the Company.
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"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article 7 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
as it may be amended from time to time.
"UCC" means the Uniform Commercial Code, as in effect in each applicable
jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of 1978,
as amended and as codified in Title 11 of the United States Code, as amended
from time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of 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 shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or Principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or Principal
of the U.S. Government Obligation evidenced by such depository receipt.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Yield to Maturity" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series are
issuable from time to time, on a Security of such series, calculated at the time
of issuance of such series in the case of clause (i) or at the time of issuance
of such Security of such series in the case of clause (ii), or, if applicable,
at the most recent redetermination of interest on such series or on such
Security, and calculated in accordance with the constant interest method or such
other accepted financial practice as is specified in the terms of such Security.
Section 1.02. OTHER DEFINITIONS. Each of the following terms is
defined in the section set forth opposite such term:
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TERM SECTION
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Authenticating Agent 2.02
cash Transaction 7.03
CSFB Corp. 6.01
Dollars 4.02
Events of Default 6.01
Judgment Currency 11.15
mandatory sinking fund payment 3.05
optional sinking fund payment 3.05
Paying Agent 2.05
Payment Blockage Period 10.02(b)
record date 2.04
Registrar 2.05
Required Currency 11.15
Security Register 2.05
self-liquidating paper 7.03
sinking fund payment date 3.05
tranche 2.14
Section 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture. The
following terms used in this Indenture that are defined by the Trust Indenture
Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
have the meanings assigned to them therein. If any provision of this Indenture
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
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Section 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, and words in the
plural include the singular;
(iii) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(iv) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should not be
deemed a limitation, and the use of any such pronouns should be construed
to include, where appropriate, the other pronouns.
Article II
THE SECURITIES
Section 2.01. FORM AND DATING. The Securities of each series shall
be substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law, or with
any rules of any securities exchange or usage, all as may be determined by the
officers executing such Securities as evidenced by their execution of the
Securities. Unless otherwise so established, Unregistered Securities shall have
coupons attached.
Section 2.02. EXECUTION AND AUTHENTICATION. The chairman of the
board of directors, the chief executive officer, the president, the chief
financial officer, the chief administrative officer, the chief accounting
officer or any Managing Director and the treasurer or any assistant treasurer or
the secretary or any assistant secretary shall execute the Securities (other
than coupons) for the Company by facsimile or manual signature in the name and
on behalf of the Company. The seal of the Company, if any, shall be reproduced
on the Securities. If an Officer whose signature is on a Security no longer
holds that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an authenticating
agent (the "Authenticating Agent") to authenticate Securities (other than
coupons). The 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 Authenticating Agent.
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A Security (other than coupons) shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series having attached
thereto appropriate coupons, if any, executed by the Company to the Trustee for
authentication together with the applicable documents referred to below in this
Section, and the Trustee shall thereupon authenticate and make available for
delivery such Securities to or upon the written order of the Company. In
authenticating any Securities of a series, the Trustee shall be entitled to
receive prior to the first authentication of any Securities of such series, and
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(1) any Board Resolution and/or executed supplemental indenture
referred to in Sections 2.01 and 2.03 by or pursuant to which the forms
and terms of the Securities of that series were established;
(2) an Officers' Certificate setting forth the form or forms and
terms of the Securities, stating that the form or forms and terms of the
Securities of such series have been, or will be when established in
accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture; and
(3) an Opinion of Counsel substantially to the effect that the form
or forms and terms of the Securities of such series have been, or will be
when established in accordance with such procedures as shall be referred
to therein, established in compliance with this Indenture and that the
supplemental indenture, to the extent applicable, and Securities have been
duly authorized and, if executed and authenticated in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof on the date of such opinion, would be entitled to the
benefits of this Indenture and would be valid and binding obligations of
the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting creditors'
rights generally, general principles of equity, and such other matters as
shall be specified therein.
If the Company shall establish pursuant to Section 2.03 that the
Securities of a series or a portion thereof are to be issued in the form of one
or more Registered Global Securities, then the Company shall execute and the
Trustee shall authenticate and make available for delivery one or more
Registered 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 issued in such form and not yet canceled, (ii) shall be registered
in the name of the Depositary for such Registered Global Security or Securities
or the nominee of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or its custodian 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 a nominee of the Depositary or by a nominee of the
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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."
Section 2.03. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such series
shall rank junior in right of payment, to the extent provided herein, to all
Senior Indebtedness. There shall be established in or pursuant to a Board
Resolution or one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series (subject to the last sentence of this
Section 2.03):
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
and any limitation on the ability of the Company to increase such
aggregate principal amount after the initial issuance of the Securities of
that series (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, or upon
redemption of, other Securities of the series pursuant hereto);
(3) the date or dates on which the Principal of the Securities of
the series is payable (which date or dates may be fixed or extendible);
(4) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the date
or dates from which such interest shall accrue, on which such interest
shall be payable and (in the case of Registered Securities) on which a
record shall be taken for the determination of Holders to whom interest is
payable and/or the method by which such rate or rates or date or dates
shall be determined;
(5) if other than as provided in Section 4.02, the place or places
where the Principal of and any interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
exchange, notices, demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served and notice to
Holders may be published;
(6) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods
within which, the price or prices at which and any terms and conditions
upon which Securities of the series may be so redeemed, pursuant to any
sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the
9
period or periods within which and any of the terms and conditions upon
which Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the entire principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof;
(10) if other than the coin or currency in which the Securities of
the series are denominated, the coin or currency in which payment of the
Principal of or interest on the Securities of the series shall be payable
or if the amount of payments of Principal of and/or interest on the
Securities of the series may be determined with reference to an index
based on a coin or currency other than that in which the Securities of the
series are denominated, the manner in which such amounts shall be
determined;
(11) if payment of the Principal of and interest on the Securities
of the series shall be payable in currency or currencies other than the
currency of the United States, the manner in which any such currency shall
be valued against other currencies in which any other Securities shall be
payable;
(12) whether the Securities of the series or any portion thereof
will be issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons), or any combination of
the foregoing, any restrictions applicable to the offer, sale or delivery
of Unregistered Securities or the payment of interest thereon and, if
other than as provided herein, the terms upon which Unregistered
Securities of any series may be exchanged for Registered Securities of
such series and vice versa;
(13) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by non-U.S.
persons in respect of any tax, assessment or governmental charge withheld
or deducted and, if so, whether the Company will have the option to redeem
such Securities rather than pay such additional amounts;
(14) if the Securities of the 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, the
form and terms of such certificates, documents or conditions;
(15) any trustees, depositaries, authenticating or paying agents,
transfer agents or the registrar or any other agents with respect to the
Securities of the series;
(16) provisions, if any, for the defeasance of the Securities of the
series (including provisions permitting defeasance of less than all
Securities of the series),
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which provisions may be in addition to, in substitution for, or in
modification of (or any combination of the foregoing) the provisions of
Article 8;
(17) if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities, the identity of the
Depositary for such Registered Global Security or Securities;
(18) any other events of default or covenants with respect to the
Securities of the series; and
(19) any other terms of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining thereto
shall be substantially identical, except in the case of Registered Securities as
to date and denomination, except in the case of any Periodic Offering and except
as may otherwise be provided by or pursuant to the Board Resolution referred to
above or as set forth in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution or in any such indenture supplemental hereto
and any forms and terms of Securities to be issued from time to time may be
completed and established from time to time prior to the issuance thereof by
procedures described in such Board Resolution or supplemental indenture.
Section 2.04. DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF
INTEREST. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple
thereof. The Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the Officers of
the Company executing the same may determine, as evidenced by their execution
thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated by
Section 2.03.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date for such series, in which case the
provisions of Section 2.13 shall apply. The term "record date" as used with
respect to any interest payment date (except a date for payment of defaulted
interest) for the Securities of any series shall mean the date specified as such
in the terms of the Registered Securities of such series established as
contemplated by Section 2.03, or, if no such
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date is so established, the fifteenth day next preceding such interest payment
date, whether or not such record date is a Business Day.
Section 2.05. REGISTRAR AND PAYING AGENT. The Company shall maintain
an office or agency where Securities may be presented for registration,
registration of transfer or exchange (the "Registrar") and an office or agency
where Securities may be presented for payment (the "Paying Agent"), which shall
be in the Borough of Manhattan, The City of New York. The Company shall cause
the Registrar to keep a register of the Registered Securities and of their
registration, transfer and exchange (the "Security Register"). The Company may
have one or more additional Paying Agents or transfer agents with respect to any
series.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such. The Company may remove any Agent upon written notice to such Agent and
the Trustee; provided that no such removal shall become effective until (i) the
acceptance of an appointment by a successor Agent to such Agent as evidenced by
an appropriate agency agreement entered into by the Company and such successor
Agent and delivered to the Trustee or (ii) notification to the Trustee that the
Trustee shall serve as such Agent until the appointment of a successor Agent in
accordance with clause (i) of this proviso. The Company or any affiliate of the
Company may act as Paying Agent or Registrar; provided that neither the Company
nor an affiliate of the Company shall act as Paying Agent in connection with the
defeasance of the Securities or the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar, Paying Agent and
Authenticating Agent. If, at any time, the Trustee is not the Registrar, the
Registrar shall make available to the Trustee ten days prior to each interest
payment date and at such other times as the Trustee may reasonably request the
names and addresses of the Holders as they appear in the Security Register.
Section 2.06. PAYING AGENT TO HOLD MONEY IN TRUST. Not later than
10:00 a.m., New York City time, on each due date of any Principal or interest on
any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent for
the payment of Principal of and interest on such Securities and shall promptly
notify the Trustee in writing of any default by the Company in making any such
payment. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and account for any funds disbursed, and the Trustee
may at any time during the continuance of any payment default, upon written
request to a Paying Agent, require such Paying Agent to pay all money held by it
to the Trustee and to account for any funds disbursed. Upon doing so, the Paying
Agent shall have no further liability for the money so paid over to the Trustee.
If the Company or any affiliate of the Company acts as Paying Agent, it will, on
or before each due date of any Principal of or interest on any Securities,
segregate and hold in a separate trust fund for the benefit of the Holders
12
thereof a sum of money sufficient to pay such Principal or interest so becoming
due until such sum of money shall be paid to such Holders or otherwise disposed
of as provided in this Indenture, and will promptly notify the Trustee in
writing of its action or failure to act as required by this Section.
Section 2.07. TRANSFER AND EXCHANGE. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of any series
(other than a Registered Global Security, except as set forth below) may be
exchanged for a Registered Security or Registered Securities of such series and
tenor having authorized denominations and an equal aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the agency of
the Company that shall be maintained for such purpose in accordance with Section
2.05 and upon payment, if the Company shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise established pursuant to
Section 2.03, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with Section
4.02, with, in the case of Unregistered Securities that have coupons attached,
all unmatured coupons and all matured coupons in default thereto appertaining,
and upon payment, if the Company shall so require, of the charges hereinafter
provided.
At the option of the Holder thereof, if Unregistered Securities of any
series, maturity date, interest rate and original issue date are issued in more
than one authorized denomination, except as otherwise established pursuant to
Section 2.03, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered Securities to be
exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 4.02, with, in the case of Unregistered Securities
that have coupons attached, all unmatured coupons and all matured coupons in
default thereto appertaining, and upon payment, if the Company shall so require,
of the charges hereinafter provided. Registered Securities of any series may not
be exchanged for Unregistered Securities of such series.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and make available for delivery, the
Securities which the Holder making the exchange is entitled to receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the holder or his attorney duly
authorized in writing.
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The Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
Notwithstanding any other provision of this Section 2.07, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Registered Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of any
series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and make available for delivery Registered
Securities of such series and tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of such Registered
Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion determine that any
Registered Global Securities of any series shall no longer be maintained in
global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of definitive
Registered Securities of such series and tenor, will authenticate and make
available for delivery, Registered Securities of such series and tenor in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of such Registered Global Securities, in exchange for such
Registered Global Securities.
Any time the Registered Securities of any series are not in the form of
Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.02 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.03 with respect to any
Registered Global Security, the Depositary for such Registered Global Security
may surrender such Registered Global Security in exchange in whole or in part
for Registered Securities of the same series and tenor in definitive registered
form on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, without service charge, (i) to the Person specified
by such Depositary new Registered Securities of the same series and tenor, of
any authorized denominations as requested by such Person, in an aggregate
principal amount equal to and in
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exchange for such Person's beneficial interest in the Registered Global
Security; and (ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Registered Global Security and the aggregate principal amount of
Registered Securities authenticated and delivered pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered Global Security
pursuant to this Section 2.07 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or an agent of the Company or the Trustee in writing.
The Trustee or such agent shall deliver such Securities to or as directed in
writing by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall be
valid obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any Securities
to the contrary, none of the Company, the Trustee or any agent of the Company or
the Trustee shall be required to exchange any Unregistered Security for a
Registered Security if such exchange would result in adverse Federal income tax
consequences to the Company (such as, for example, the inability of the Company
to deduct from its income, as computed for Federal income tax purposes, the
interest payable on the Unregistered Securities) under then applicable United
States Federal income tax laws. The Trustee and any such agent shall be entitled
to conclusively rely on an Officers' Certificate or an Opinion of Counsel in
determining such result.
The Registrar shall not be required (i) to issue, authenticate, register
the transfer of or exchange Securities of any series for a period of 15 days
before a selection of such Securities to be redeemed or (ii) to register the
transfer of or exchange any Security selected for redemption in whole or in
part.
Section 2.08. REPLACEMENT SECURITIES. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims that
its Security of any series has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security of
such series and tenor and principal amount bearing a number not
contemporaneously outstanding. An indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect the
Company, the Trustee and any Agent from any loss that any of them may suffer if
a Security is replaced. The Company may charge such Holder for its expenses and
the expenses of the Trustee (including without limitation attorneys' fees and
expenses) in replacing a Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security has become or is about to become due and
payable, the Company in its discretion may pay such Security instead of issuing
a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company and
shall be entitled to the benefits of this Indenture equally and proportionately
with any and all other Securities of such series duly authenticated and
delivered hereunder.
15
To the extent permitted by law, the foregoing provisions of this Section
are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
Section 2.09. OUTSTANDING SECURITIES. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those Securities canceled by it, those Securities delivered to it for
cancellation, those paid pursuant to Section 2.08 and those Securities described
in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of the
Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to be
redeemed or repurchased on such date, then on and after such date such
Securities shall cease to be outstanding and interest on them shall cease to
accrue.
A Security does not cease to be outstanding because the Company or one of
its affiliates holds such Security, provided, however, that, in determining
whether the Holders of the requisite principal amount of the outstanding
Securities shall have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
affiliate of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities as to which a Responsible Officer of the Trustee has
received written notice to be so owned shall be so disregarded. Any Securities
so owned which are pledged by the Company, or by any affiliate of the Company,
as security for loans or other obligations, otherwise than to another such
affiliate of the Company, shall be deemed to be outstanding, if the pledgee is
entitled pursuant to the terms of its pledge agreement and is free to exercise
in its discretion the right to vote such securities, uncontrolled by the Company
or by any such affiliate.
Section 2.10. TEMPORARY SECURITIES. Until definitive Securities of
any series are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities of such series. Temporary Securities of any
series shall be substantially in the form of definitive Securities of such
series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary Securities,
as evidenced by their execution of such temporary Securities. If temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities of any series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series and
tenor upon surrender of such temporary Securities at the office or agency of the
Company designated for such purpose pursuant to Section 4.02, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of such series and tenor and
16
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 2.11. CANCELLATION. The Company at any time may deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold.
The Registrar, any transfer agent and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment or cancellation and shall deliver such canceled Securities to the
Company. The Company may not issue new Securities to replace Securities it has
paid in full or delivered to the Trustee for cancellation.
Section 2.12. CUSIP NUMBERS. The Company in issuing the Securities
may use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee
shall use CUSIP numbers or CINS numbers, as the case may be, in notices of
redemption or exchange as a convenience to Holders and no representation shall
be made as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of redemption or exchange.
Section 2.13. DEFAULTED INTEREST. If the Company defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest plus (to the extent lawful) any interest payable on the
defaulted interest (as may be specified in the terms thereof, established
pursuant to Section 2.03) to the Persons who are Holders on a subsequent special
record date, which shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before such special record date, the Company
shall mail to each Holder and to the Trustee a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
Section 2.14. SERIES MAY INCLUDE TRANCHES. A series of Securities
may include one or more tranches (each a "tranche") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to Sections
2.02 (other than the fourth paragraph thereof) through 2.04, 2.07, 2.08, 2.10,
3.01 through 3.05, 4.02, 6.01 through 6.14, 8.01 through 8.05 and 9.02, if any
series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series unless otherwise provided with respect to
such series or tranche pursuant to Section 2.03. In particular, and without
limiting the scope of the next preceding sentence, any of the provisions of such
sections which provide for or permit action to be taken with respect to a series
of Securities shall also be deemed to provide for and permit such action to be
taken instead only with respect to Securities of one or more tranches within
that series (and
17
such provisions shall be deemed satisfied thereby), even if no comparable action
is taken with respect to Securities in the remaining tranches of that series.
Section 2.15. COMPUTATION OF INTEREST. Except as otherwise specified
pursuant to Section 2.03 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
Article III
REDEMPTION
Section 3.01. APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
Section 3.02. NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Company shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
of Registered Securities of such series at their last addresses as they shall
appear upon the Security Register of the Company. Notice of redemption to the
Holders of Unregistered Securities of any series to be redeemed as a whole or in
part, who have filed their names and addresses with the Trustee pursuant to
Section 313(c)(2) of the Trust Indenture Act, shall be given by mailing notice
of such redemption, by first class mail, postage prepaid, at least 30 days and
not more than 60 days prior to the date fixed for redemption, to such Holders at
such addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Company, the Trustee shall make such information available
to the Company for such purpose). Notice of redemption to all other Holders of
Unregistered Securities of any series to be redeemed as a whole or in part shall
be published in an Authorized Newspaper in The City of New York and in an
Authorized Newspaper in London, in each case, once in each of three successive
calendar weeks, the first publication to be not less than 30 days nor more than
60 days prior to the date fixed for redemption. Any notice which is mailed or
published in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
CUSIP and CINS numbers of the Securities to be redeemed, the date fixed for
redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities and, in the case
of Securities with coupons attached thereto, of all coupons appertaining thereto
maturing after the date fixed for redemption, that such redemption is pursuant
to the mandatory or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as specified in
such notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any Security of a series is
18
to be redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Security, a new Security
or Securities of such series and tenor in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
On or before 10:00 a.m., New York City time, on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.06) an amount of money sufficient to redeem on
the redemption date all the Securities of such series so called for redemption
at the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If all of the outstanding Securities of a series are to be
redeemed, the Company will deliver to the Trustee at least 10 days prior to the
last date on which notice of redemption may be given to Holders pursuant to the
first paragraph of this Section 3.02 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating that all such
Securities are to be redeemed. If less than all the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 15
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.02 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
the aggregate principal amount of such Securities to be redeemed. In case of a
redemption at the election of the Company prior to the expiration of any
restriction on such redemption, the Company shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officers' Certificate stating that such redemption is not prohibited by such
restriction. If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Company in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
Section 3.03. PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after such
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to such date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured coupons, if any, appertaining thereto shall be void
and, except as provided in Sections 7.11 and 8.04, such Securities shall cease
from and after the date fixed for redemption to be entitled to any benefit
19
under this Indenture, and the Holders thereof shall have no right in respect of
such Securities except the right to receive the redemption price thereof and
unpaid interest to the date fixed for redemption.
On presentation and surrender of such Securities at a place of payment
specified in said notice, together with all coupons, if any, appertaining
thereto maturing after the date fixed for redemption, said Securities or the
specified portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with interest accrued thereon to the date
fixed for redemption; provided that payment of interest becoming due on or prior
to the date fixed for redemption shall be payable in the case of Securities with
coupons attached thereto, to the Holders of the coupons for such interest upon
surrender thereof, and in the case of Registered Securities, to the Holders of
such Registered Securities registered as such on the relevant record date
subject to the terms and provisions of Sections 2.04 and 2.13 hereof. If any
Security called for redemption shall not be so paid upon surrender thereof for
redemption, the Principal shall, until paid or duly provided for, bear interest
from the date fixed for redemption at the rate of interest or Yield to Maturity
(in the case of an Original Issue Discount Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after the
date fixed for redemption, the surrender of such missing coupon or coupons may
be waived by the Company and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security of any series redeemed in part only, the
Company shall execute and the Trustee shall authenticate and make available for
delivery to or on the order of the Holder thereof, at the expense of the
Company, a new Security or Securities of such series and tenor (with any
unmatured coupons attached), of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
Section 3.04. EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an Officer of the Company and delivered
to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
Section 3.05. MANDATORY AND OPTIONAL SINKING FUNDS. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund payment," and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date." In lieu of making all or any
part of any mandatory sinking fund payment with respect to any series of
Securities in cash, the Company may at its option (a) deliver to the Trustee
Securities of such series theretofore purchased or
20
otherwise acquired (except through a mandatory sinking fund payment) by the
Company or receive credit for Securities of such series (not previously so
credited) theretofore purchased or otherwise acquired (except as aforesaid) by
the Company and delivered to the Trustee for cancellation pursuant to Section
2.11, (b) receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section, or (c) receive credit for Securities of
such series (not previously so credited) redeemed by the Company through any
optional sinking fund payment. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, or such shorter period as shall be acceptable to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none
of the specified Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Company intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which
the Company intends to pay on or before the next succeeding sinking fund payment
date.
Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Company to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.11 to the Trustee with such
Officers' Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers' Certificate shall be irrevocable and upon its receipt
by the Trustee the Company shall become unconditionally obligated to make all
the cash payments or delivery of Securities therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the Company, on
or before any such sixtieth day, to deliver such Officers' Certificate and
Securities specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Company (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or a lesser sum if the Company shall so request with respect to the Securities
of any series), such cash shall be applied on the next succeeding sinking fund
payment date to the redemption of Securities of such series at the sinking fund
redemption price thereof together with accrued interest thereon to the date
fixed for redemption. If such amount shall be $50,000 (or such lesser sum) or
less and the Company makes no such request then it shall be carried over until a
sum in excess of $50,000 (or such lesser sum) is available. The Trustee shall
select, in the manner provided in Section 3.02, for redemption on such sinking
fund payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by the
21
Company) inform the Company of the serial numbers of the Securities of such
series (or portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered to the
Trustee at least 60 days prior to the sinking fund payment date as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Company or (b) an entity specifically identified in such Officers' Certificate
as directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company. The Trustee, in the name and at the
expense of the Company (or the Company, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to be
given in substantially the manner provided in Section 3.02 (and with the effect
provided in Section 3.03) for the redemption of Securities of such series in
part at the option of the Company. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the Principal of, and
interest on, the Securities of such series at maturity.
On or before 10:00 a.m., New York City time, on each sinking fund payment
date, the Company shall pay to the Trustee in cash or shall otherwise provide
for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a
Default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such Default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article 6 and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 6.04 or
the Default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
Article IV
COVENANTS
Section 4.01. PAYMENT OF SECURITIES. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities with
coupons attached (together with
22
any additional amounts payable pursuant to the terms of such Securities) shall
be payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature. The
interest on any temporary Unregistered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be paid, as to
the installments of interest evidenced by coupons attached thereto, if any, only
upon presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Unregistered Securities for
notation thereon of the payment of such interest. The interest on Registered
Securities (together with any additional amounts payable pursuant to the terms
of such Securities) shall be payable only to the Holders thereof and at the
option of the Company may be paid by mailing checks for such interest payable to
or upon the written order of such Holders at their last addresses as they appear
on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of any
series to the contrary, if the Company and a Holder of any Registered Security
so agree or if expressly provided pursuant to Section 2.03, payments of interest
on, and any portion of the Principal of, such Holder's Registered Security
(other than interest payable at maturity or on any redemption or repayment date
or the final payment of Principal on such Security) shall be made by the Paying
Agent, upon receipt from the Company of immediately available funds by 11:00
a.m., New York City time (or such other time as may be agreed to between the
Company and the Paying Agent), directly to the Holder of such Security (by
Federal funds wire transfer or otherwise) if the Holder has delivered written
instructions to the Trustee 15 days prior to such payment date requesting that
such payment will be so made and designating the bank account to which such
payments shall be so made and in the case of payments of Principal surrenders
the same to the Trustee in exchange for a Security or Securities aggregating the
same principal amount as the unredeemed principal amount of the Securities
surrendered.
The Trustee shall be entitled to rely on the last instruction delivered by
the Holder pursuant to this Section 4.01 unless a new instruction is delivered
15 days prior to a payment date. The Company will indemnify and hold each of the
Trustee and any Paying Agent harmless against any loss, liability or expense
(including attorneys' fees) resulting from any act or omission to act on the
part of the Company or any such Holder in connection with any such agreement or
from making any payment in accordance with any such agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
Section 4.02. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company hereby initially designates the Corporate Trust Office of the Trustee,
located in the Borough of Manhattan, The City of New York, as such office or
agency of the Company. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the
23
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in Section
11.02.
The Company will maintain one or more agencies in a city or cities located
outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of any series are listed) where the Unregistered Securities, if any,
of each series and coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless, pursuant to
applicable United States laws and regulations then in effect, such payment can
be made without adverse tax consequences to the Company.
Notwithstanding the foregoing, if full payment in United States Dollars
("Dollars") at each agency maintained by the Company outside the United States
for payment on such Unregistered Securities or coupons appertaining thereto is
illegal or effectively precluded by exchange controls or other similar
restrictions, payments in Dollars of Unregistered Securities of any series and
coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Company maintained in the Borough of Manhattan, The City of New
York. The Company may also from time to time designate one or more other offices
or agencies where the Securities of any series may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided 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 for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
Section 4.03. CERTIFICATE TO TRUSTEE. The Company will furnish to
the Trustee annually, on or before a date not more than four months after the
end of its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 11.04)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture) which
certificate shall comply with the requirements of the Trust Indenture Act.
Section 4.04. REPORTS BY THE COMPANY. The Company covenants to file
with the Trustee, within 15 days after the Company is required to file the same
with the Commission, copies of the annual reports and of the information,
documents and other reports which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with any of
the covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers' Certificates).
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Section 4.05. CALCULATION OF ORIGINAL ISSUE DISCOUNT. The Company
shall file with the Trustee promptly at the end of each calendar year a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on outstanding Securities as of the end of such
year.
Article V
SUCCESSOR CORPORATION
Section 5.01. WHEN COMPANY MAY MERGE, ETC. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person (other than a consolidation with or merger
with or into a Subsidiary or a sale, conveyance, transfer, lease or other
disposition to a Subsidiary) or permit any Person to merge with or into the
Company unless:
(i) either (x) the Company shall be the continuing Person or (y) the
Person (if other than the Company) formed by such consolidation or into
which the Company is merged or that acquired or leased such property
and assets of the Company shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, all of the
obligations of the Company on all of the Securities and under this
Indenture and the Company shall have delivered to the Trustee an
Opinion of Counsel stating that such consolidation, merger or transfer
and such supplemental indenture complies with this provision and that
all conditions precedent provided for herein relating to such
transaction have been complied with and that such supplemental
indenture constitutes the legal, valid and binding obligation of the
Company or such successor enforceable against such entity in accordance
with its terms, subject to customary exceptions; and
(ii) the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that immediately after giving effect to such
transaction, no Default shall have occurred and be continuing and an
Opinion of Counsel as to the matters set forth in Section 5.01(i)(y).
Section 5.02. SUCCESSOR SUBSTITUTED. Upon any consolidation or
merger, or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease 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 Person had been named
as the Company herein.
25
Article VI
DEFAULT AND REMEDIES
Section 6.01. EVENTS OF DEFAULT. An "Event of Default" shall occur
with respect to the Securities of any series if:
(a) the Company defaults in the payment of all or any part of the
Principal of any Security of such series when the same becomes due and payable
at maturity, upon acceleration, redemption or mandatory repurchase, including as
a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of any interest on any
Security of such series when the same becomes due and payable, and such default
continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture with respect to any
Security of such series or in the Securities of such series and such default or
breach continues for a period of 60 days after written notice thereof has been
given to the Company by the Trustee or to the Company and the Trustee by the
Holders of 25% or more in aggregate principal amount of the Securities of all
series affected thereby;
(d) an involuntary case or other proceeding shall be commenced
against the Company or Credit Suisse First Boston Corporation, a Massachusetts
corporation and a wholly-owned subsidiary of the Company ("CSFB Corp."), with
respect to the Company or CSFB Corp. or their respective debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect seeking
the appointment of a trustee, receiver, liquidator, custodian or other similar
official of the Company or CSFB Corp. or for any substantial part of the
property and assets of the Company or CSFB Corp., and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of 60 days;
or an order for relief shall be entered against the Company or CSFB Corp., under
any bankruptcy, insolvency or other similar law now or hereafter in effect;
(e) the Company or CSFB Corp. (A) commences a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consents to the entry of an order for relief in an involuntary case
under any such law, (B) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or CSFB Corp. or for all or substantially all of the
property and assets of the Company or CSFB Corp., or (C) effects any general
assignment for the benefit of creditors; or
(f) any other Event of Default established pursuant to Section 2.03
with respect to the Securities of such series occurs.
Section 6.02. ACCELERATION. (a) If an Event of Default described in
clauses (a) or (b) of Section 6.01 with respect to the Securities of any series
then outstanding
26
occurs and is continuing, then, and in each and every such case, except for any
series of Securities the Principal of which shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of any such affected series then outstanding
hereunder (each such series treated as a separate class) by notice in writing to
the Company (and to the Trustee if given by Securityholders), may declare the
entire principal amount (or, if the Securities of any such series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series established pursuant to Section 2.03) of
all Securities of such affected series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable.
(i) If an Event of Default described in clauses (c) or (f) of
Section 6.01 with respect to the Securities of one or more but not all
series then outstanding, occurs and is continuing, then, and in each and
every such case, except for any series of Securities the Principal of
which shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, the
amount thereof accelerable under this Section) of the Securities of all
such affected series then outstanding hereunder (treated as a single
class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal amount (or, if the
Securities of any such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such
series established pursuant to Section 2.03) of all Securities of all such
affected series, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(ii) If an Event of Default described in clauses (d) or (e) of
Section 6.01 occurs and is continuing, then the principal amount (or, if
any Securities are Original Issue Discount Securities, such portion of the
Principal as may be specified in the terms thereof established pursuant to
Section 2.03) of all the Securities then outstanding and interest accrued
thereon, if any, shall be and become immediately due and payable, without
any notice or other action by any Holder or the Trustee, to the full
extent permitted by applicable law.
(iii) If an Event of Default described in clauses (c) or (f) of
Section 6.01 with respect to the Securities of all series then
outstanding, occurs and is continuing, then, and in each and every such
case, either the Trustee or the Holders of not less than 25% in aggregate
principal amount (or, if the Securities of any outstanding series are
Original Issue Discount Securities, the amount thereof accelerable under
this Section) of all Securities of any series then outstanding hereunder
except for any series of Securities the Principal of which shall have
already become due and payable (treated as a single class) by notice in
writing to the Company (and to the Trustee if given by Securityholders),
may declare the entire principal amount (or, if the Securities of any such
series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series
established pursuant to Section 2.03) of all Securities of any series then
outstanding, and the interest accrued thereon, if any, to be due and
payable
27
immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal amount (or, if the Securities are Original Issue
Discount Securities, such portion of the Principal as may be specified in the
terms thereof established pursuant to Section 2.03) of the Securities of any
series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of each such series (or
of all the Securities, as the case may be) and the Principal of any and all
Securities of each such series (or of all the Securities, as the case may be)
which shall have become due otherwise than by acceleration (with interest upon
such Principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of each such series to the date
of such payment or deposit) and such amount as shall be sufficient to cover all
amounts owing the Trustee under Section 7.07, and if any and all Events of
Default under this Indenture, other than the non-payment of the Principal of
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein, then and in every such case the
Holders of a majority in aggregate principal amount of all the then outstanding
Securities of all such series that have been accelerated (voting as a single
class), by written notice to the Company and to the Trustee, may waive all
defaults with respect to all such series (or with respect to all the Securities,
as the case may be) and rescind and annul such declaration and its consequences,
but no such waiver or rescission and annulment shall extend to or shall affect
any subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the Principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the Principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the Principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
Section 6.03. OTHER REMEDIES. If a payment default or an Event of
Default with respect to the Securities of any series occurs and is continuing,
the Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such 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.
28
Section 6.04. WAIVER OF PAST DEFAULTS. Subject to Sections 6.02,
6.07 and 9.02, the Holders of at least a majority in principal amount (or, if
the Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class), by notice to the
Trustee, may waive an existing Default or Event of Default with respect to the
Securities of such series and its consequences, except a Default in the payment
of Principal of or interest on any Security as specified in clauses (a) or (b)
of Section 6.01 or in respect of a covenant or provision of this Indenture which
cannot be modified or amended without the consent of the Holder of each
outstanding Security affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default with respect to the Securities of such series
arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereto.
Section 6.05. CONTROL BY MAJORITY. Subject to Sections 7.01 and
7.02(v), the Holders of at least a majority in aggregate principal amount (or,
if any Securities are Original Issue Discount Securities, such portion of the
Principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class) 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 the Trustee with
respect to the Securities of such series by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further, that
the Trustee may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Securities pursuant to this Section
6.05.
Section 6.06. LIMITATION ON SUITS. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to this
Indenture or the Securities of such series, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written notice
of a continuing Event of Default with respect to the Securities of such
series;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected shall have made written
request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
29
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities of all such
affected series have not given the Trustee a direction that is
inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other 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 such Holder's Security
on or after the respective due dates expressed on such 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 such Holder.
Section 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
with respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount (or such portion thereof as specified
in the terms established pursuant to Section 2.03 of Original Issue Discount
Securities) of Principal of, and accrued interest remaining unpaid on, together
with interest on overdue Principal of, and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest on, the
Securities of such series, in each case at the rate or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such Securities, and
such further amount as shall be sufficient to cover all amounts owing 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 (including any claim for
amounts due the Trustee under Section 7.07) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
under Section 7.07. Nothing herein contained shall be deemed to empower 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.
Section 6.10. APPLICATION OF PROCEEDS. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of Principal
or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal
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amounts in exchange for the presented Securities of such series and tenor if
only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 7.07
applicable to the Securities of such series in respect of which moneys have
been collected;
SECOND: In case the Principal of the Securities of such series in respect
of which moneys have been collected shall not have become and be then due and
payable, to the payment of interest on the Securities of such series in default
in the order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in such Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: In case the Principal of the Securities of such series in respect
of which moneys have been collected shall have become and shall be then due and
payable, to the payment of the whole amount then owing and unpaid upon all the
Securities of such series for Principal and interest, with interest upon the
overdue Principal, and (to the extent that such interest has been collected by
the Trustee) upon overdue installments of interest at the same rate as the rate
of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such Principal and interest or
Yield to Maturity, without preference or priority of Principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over Principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to the
aggregate of such Principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Company or any
other person lawfully entitled thereto.
Section 6.11. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then,
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored to their former positions
hereunder and thereafter all rights and remedies of the Company, Trustee and the
Holders shall continue as though no such proceeding had been instituted.
Section 6.12. UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, in either case in respect to
the Securities of any series, a court may require any party litigant in such
suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant (other than the Trustee) in the
suit having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.12
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does not apply to 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
such series or to the Trustee.
Section 6.13. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.08, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 6.14. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article 6 or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Article VII
TRUSTEE
Section 7.01. GENERAL. The duties and responsibilities of the
Trustee shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, unless it receives indemnity satisfactory to it
against any loss, liability or expense. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Article 7. The Trustee, prior to the occurrence of an Event
of Default of which a Responsible Officer of the Trustee has actual knowledge
and after the curing of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture and no implied covenants or obligations shall be read
into this Indenture against the Trustee. If an Event of Default to the actual
knowledge of a Responsible Officer of the Trustee has occurred (which has not
been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Agreement or any Supplement and use the same degree of care
and skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
Section 7.02. CERTAIN RIGHTS OF TRUSTEE. Subject to Trust Indenture
Act Sections 315(a) through (d):
(i) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any Officers' Certificate,
Opinion of Counsel (or both), resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
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document believed by it to be genuine and to have been signed or presented
by the proper person or persons. The Trustee need not investigate any fact
or matter stated in the document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as
it may see fit;
(ii) before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and/or an Opinion of Counsel, which shall conform
to Section 11.04. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or opinion.
Subject to Sections 7.01 and 7.02, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or
omitting to take any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may, in the absence
of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered
to the Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under the
provisions of this Indenture upon the faith thereof;
(iii) the Trustee may act through its attorneys, Agents, custodian
and nominee not regularly in its employ and shall not be responsible for
the misconduct or negligence of any Agent, attorney, custodian and nominee
appointed with due care;
(iv) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced to the
Trustee by a copy thereof certified by the secretary or an assistant
secretary of the Company;
(v) 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, unless such Holders shall have offered to
the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with
such request, order or direction;
(vi) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within
its rights or powers or for any action it takes or omits to take in
accordance with the direction of the Holders in accordance with Section
6.05 relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture;
(vii) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in
reliance thereon; and
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(viii) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall
not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, Officers' Certificate, Opinion of Counsel,
Board Resolution, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do
by the Holders of not less than a majority in aggregate principal amount
of the Securities of all series affected then outstanding; provided that,
if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require indemnity satisfactory to it against such expenses
or liabilities as a condition to proceeding.
(ix) if the Trustee is acting as Paying Agent or Transfer Agent and
Registrar herein the rights and protections afforded the Trustee under
this Article 7 shall also be afforded to such Paying Agent or Transfer
Agent and Registrar.
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 its affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b)
and 311. For purposes of Trust Indenture Act Section 311(b)(4) and (6), the
following terms shall mean:
(a) "cash transaction" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, ▇▇▇▇ of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, ▇▇▇▇ of exchange, acceptance or
obligation.
Section 7.04. TRUSTEE'S DISCLAIMER. The recitals contained herein
and in the Securities (except the Trustee's certificate of authentication) shall
be taken as statements of the Company and not of the Trustee and the Trustee
assumes no responsibility for the correctness of the same. Neither the Trustee
nor any of its agents (i) makes any representation as to the validity or
adequacy of this Indenture or the Securities and (ii) shall be accountable for
the Company's use or application of the proceeds from the Securities or for
monies paid over to the Company pursuant to the Indenture.
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Section 7.05. NOTICE OF DEFAULT. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a Responsible Officer with the corporate trust
department of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if any
Unregistered Securities of such series are then outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London and (ii) to all Holders of Securities of such series in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, unless such
Default shall have been cured or waived before the mailing or publication of
such notice; provided, however, that, except in the case of a Default in the
payment of the Principal of or interest on any Security, the Trustee shall be
fully protected in withholding such notice if the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
Section 7.06. REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after
each September 15, beginning with September 15, 2001, the Trustee shall mail to
each Holder as and to the extent provided in Trust Indenture Act Section 313(c)
a brief report dated as of such September 15, if required by Trust Indenture Act
Section 313(a).
Section 7.07. COMPENSATION AND INDEMNITY. The Company shall pay to
the Trustee such compensation as shall be agreed upon in writing from time to
time for its services. The compensation of the Trustee shall not be limited by
any law on compensation of a Trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents,
counsel and other persons not regularly in its employ.
The Company shall indemnify the Trustee and its Officers, directors,
employees and Agents for, and hold it and them harmless against, any and all
loss, damage, claim or liability or expense (including legal fees and expenses)
including taxes (other than taxes based on the income of the Trustee) incurred
by it or them without negligence or bad faith on its part arising out of or in
connection with the acceptance or administration of this Indenture and the
Securities or the issuance of the Securities or a series thereof or the trusts
hereunder and the performance of its duties under this Indenture and the
Securities, including the costs and expenses of defending itself against or
investigating any claim or liability and of complying with any process served
upon it or any of its officers in connection with the exercise or performance of
any of its powers or duties under this Indenture and the Securities.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture or the rejection or
35
termination of this Indenture under bankruptcy law or the earlier resignation or
removal of the Trustee. Such additional indebtedness shall be a senior claim to
that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Holders of
particular Securities or coupons, and the Securities are hereby subordinated to
such senior claim. If the Trustee renders services and incurs expenses following
an Event of Default under Section 6.01(d) or Section 6.01(e) hereof, the parties
hereto and the Holders by their acceptance of the Securities hereby agree that
such expenses are intended to constitute expenses of administration under any
bankruptcy law.
Section 7.08. REPLACEMENT OF TRUSTEE. A resignation or removal of
the Trustee as Trustee with respect to the Securities of any series and
appointment of a successor Trustee as Trustee with respect to the Securities of
any series shall become effective only upon the successor Trustee's acceptance
of appointment as provided in this Section 7.08. The Trustee may resign as
Trustee with respect to the Securities of any series at any time by so notifying
the Company in writing. The Holders of a majority in principal amount of the
outstanding Securities of any series may remove the Trustee as Trustee with
respect to the Securities of such series by so notifying the Trustee in writing
and may appoint a successor Trustee with respect thereto with the consent of the
Company. The Company may remove the Trustee as Trustee with respect to the
Securities of any series if: (i) the Trustee is no longer eligible under Section
7.10 of this Indenture; (ii) the Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Trustee or its
property; or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the outstanding Securities of such series may appoint a successor
Trustee in respect of such Securities to replace the successor Trustee appointed
by the Company. If the successor Trustee with respect to the Securities of any
series does not deliver its written acceptance required by the next succeeding
paragraph of this Section 7.08 within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the outstanding Securities of such series may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect thereto.
A successor Trustee with respect to the Securities of any series shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company. Immediately after the delivery of such written acceptance, subject
to the lien provided for in Section 7.07 and subject to the payment of any and
all amounts then due and owing to the retiring Trustee, (i) the retiring Trustee
shall transfer all property held by it as Trustee in respect of the Securities
of such series to the successor Trustee, (ii) the resignation or removal of the
retiring Trustee in respect of the Securities of such series shall become
effective and (iii) the successor Trustee shall have all the rights, powers and
duties of the Trustee in respect of the Securities of such series under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder of Securities of such series.
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Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
The Company shall give notice of any resignation and any removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee in respect of the Securities of such series to all Holders of
Securities of such series. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office. Notwithstanding
replacement of the Trustee with respect to the Securities of any series pursuant
to this Section 7.08, the Company's obligations under Section 7.07 shall
continue for the benefit of the retiring Trustee.
Section 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. 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 resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein; provided that such successor Trustee shall be otherwise qualified and
eligible under this Article 7.
Section 7.10. ELIGIBILITY. This Indenture shall always have a
Trustee who satisfies the requirements of Trust Indenture Act Section 310(a).
The Trustee shall have a combined capital and surplus of at least $25,000,000 as
set forth in its most recent published annual report of condition.
Section 7.11. MONEY HELD IN TRUST. The Trustee shall not be liable
for interest on any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law and except for
money held in trust under Article 8 of this Indenture.
Article VIII
DISCHARGE OF INDENTURE
Section 8.01. DEFEASANCE WITHIN ONE YEAR OF PAYMENT. Except as
otherwise provided in this Section 8.01, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(i) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of
such series that have been replaced or Securities of such series that are
paid pursuant to Section 4.01 or Securities of such series for whose
payment money or securities have theretofore been held in trust and
thereafter repaid to the Company, as provided in Section 8.05) have been
delivered to the Trustee for cancellation and the Company has paid all
sums payable by it hereunder; or
37
(ii) (A) the Securities of such series mature within one year or all
of them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption,
(B) the Company irrevocably deposits in trust with the Trustee, as
trust funds solely for the benefit of the Holders of such Securities for
that purpose, money or U.S. Government Obligations or a combination
thereof sufficient (unless such funds consist solely of money, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee),
without consideration of any reinvestment, to pay the Principal of and
interest on the Securities of such series to maturity or redemption, as
the case may be, and to pay all other sums payable by it hereunder, and
(C) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the satisfaction and discharge of this
Indenture with respect to the Securities of such series have been complied
with. With respect to the foregoing clause (i), only the Company's
obligations under Section 7.07 in respect of the Securities of such series
shall survive. With respect to the foregoing clause (ii), only the
Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and
8.05 in respect of the Securities of such series shall survive until such
Securities of such series are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.07 and 8.05 in respect of the
Securities of such series shall survive. After any such irrevocable
deposit, the Trustee upon written request shall acknowledge in writing the
discharge of the Company's obligations under the Securities of such series
and this Indenture with respect to the Securities of such series except
for those surviving obligations specified above.
Section 8.02. DEFEASANCE. Except as provided below, the Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); provided that the following conditions shall have been
satisfied:
(A) the Company has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the Securities of
such series, for payment of the Principal of and interest on the
Securities of such series, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds consist solely of money,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee) without consideration of any reinvestment and after payment of
all federal, state and local taxes or other charges and assessments in
respect thereof payable by the Trustee, to pay and discharge the Principal
of and accrued interest on the outstanding Securities of such series to
maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
38
(B) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company is a party or by which it is bound;
(C) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(D) the Company shall have delivered to the Trustee (1) either (x) a
ruling directed to the Trustee received from the Internal Revenue Service
to the effect 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 the Company's exercise of its option under this Section 8.02 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 and
defeasance had not occurred or (y) an Opinion of Counsel to the same
effect as the ruling described in clause (x) above and (2) an Opinion of
Counsel to the effect that the Holders of the Securities of such series
have a valid security interest in the trust funds subject to no prior
liens under the UCC; and
(E) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.02 of the Securities of such series have
been complied with. The Company's obligations in Sections 2.02 through
2.12 , 4.02, 7.07, 7.08 and 8.05 with respect to the Securities of such
series shall survive until such Securities are no longer outstanding.
Thereafter, only the Company's obligations in Sections 7.07 and 8.05 shall
survive.
Section 8.03. COVENANT DEFEASANCE. The Company may omit to comply
with any specific covenant relating to such series provided for in a Board
Resolution or supplemental indenture pursuant to Section 2.03 which may by its
terms be defeased pursuant to this Section 8.03, and such omission shall be
deemed not to be an Event of Default under clauses (c) or (f) of Section 6.01,
with respect to the outstanding Securities of a series if:
(i) the Company has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the Securities of
such series, for payment of the Principal of and interest, if any, on the
Securities of such series, money or U.S. Government Obligations or a
combination thereof in an amount sufficient (unless such funds consist
solely of money, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee) without consideration of any
reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee,
to pay and discharge the Principal of and interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the case
may be;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company is a party or by which it is bound;
39
(iii) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the Holders of the Securities of such series have a
valid security interest in the trust funds subject to no prior liens under
the UCC and (B) such Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to federal income tax on the same amount
and in the same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the covenant
defeasance contemplated by this Section 8.03 of the Securities of such
series have been complied with.
Section 8.04. APPLICATION OF TRUST MONEY. Subject to Section 8.05,
the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, in respect of the Securities of any series and shall apply the
deposited money and the proceeds from deposited U.S. Government Obligations in
accordance with the Securities of such series and this Indenture to the payment
of Principal of and interest on the Securities of such series; but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 8.01, 8.02 or 8.03 or the Principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of outstanding Securities.
Section 8.05. REPAYMENT TO COMPANY. Subject to Sections 7.07, 8.01,
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any money held by
them at any time and not required to make payments hereunder and thereupon shall
be relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them and required to make payments hereunder under this Indenture that remains
unclaimed for two years; provided that the Trustee or such Paying Agent before
being required to make any payment may cause to be published at the expense of
the Company once in an Authorized Newspaper in The City of New York and once in
an Authorized Newspaper in London or mail to each Holder entitled to such money
at such Holder's address (as set forth in the Security Register) notice that
such money remains unclaimed and that after a date specified therein (which
shall be at least 30 days from the date of such publication or mailing) any
unclaimed balance of such money then remaining will be repaid to the Company.
After payment to the Company, Holders entitled to such money must look to the
Company for payment as general creditors unless an applicable law designates
another Person, and all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
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Article IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. WITHOUT CONSENT OF HOLDERS. The Company and the
Trustee may amend or supplement this Indenture or the Securities of any series
without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act;
(4) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a
successor Trustee;
(5) to establish the form or forms or terms of Securities of any
series or of the coupons appertaining to such Securities as permitted by
Section 2.03;
(6) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose;
(7) to provide for a guarantee from a third party on outstanding
Securities of any series and the Securities of any series that may be
issued under this Indenture; or
(8) to make any change that does not materially and adversely affect
the rights of any Holder.
Section 9.02. WITH CONSENT OF HOLDERS. Subject to Sections 6.04 and
6.07, without prior notice to any Holders, the Company and the Trustee may amend
this Indenture and the Securities of any series with the written consent of the
Holders of a majority in principal amount of the outstanding Securities of all
series affected by such amendment (all such series voting as one class), and the
Holders of a majority in principal amount of the outstanding Securities of all
series affected thereby (all such series voting as one class) by written notice
to the Trustee may waive future compliance by the Company with any provision of
this Indenture or the Securities of such series.
Notwithstanding the provisions of this Section 9.02, without the consent
of each Holder affected thereby, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(i) extend the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's Security,
or reduce the Principal thereof or the rate of interest thereon (including
any amount in respect of original issue discount), or any premium payable
with respect thereto, or adversely affect
41
the rights of such Holder under any mandatory redemption or repurchase
provision or any right of redemption or repurchase at the option of such
Holder, or reduce the amount of the Principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 6.02 or the amount thereof
provable in bankruptcy, or change any place of payment where, or the
currency in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the due date therefor;
(ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required
for any such supplemental indenture, for any waiver of compliance with
certain provisions of this Indenture or certain Defaults and their
consequences provided for in this Indenture;
(iii) waive a Default in the payment of Principal of or interest on
any Security of such Holder; or
(iv) modify any of the provisions of this Section 9.02, except to
increase any such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Security affected thereby. A supplemental
indenture which changes or eliminates any covenant or other provision of
this Indenture which has expressly been included solely for the benefit of
one or more particular series of Securities, or which modifies the rights
of Holders of Securities of such series with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture
of the Holders of Securities of any other series or of the coupons
appertaining to such Securities.
It shall not be necessary for the consent of any Holder under this Section
9.02 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall give to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. 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. REVOCATION AND EFFECT OF CONSENT. Until an amendment
or waiver becomes effective, a consent to it by a Holder 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 Security of the consenting Holder, even if
notation of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to its Security or portion of its
Security. Such revocation shall be effective only if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective with
respect to any Securities affected thereby on receipt by the Trustee of written
consents from the requisite Holders of outstanding Securities affected thereby.
42
The Company may, but shall not be obligated to, fix a record date (which
may be not less than 10 nor more than 60 days prior to the solicitation of
consents) for the purpose of determining the Holders of the Securities of any
series affected entitled to consent to any amendment, supplement or waiver. If a
record date is fixed, then, notwithstanding the immediately preceding paragraph,
those Persons who were such Holders at such record date (or their duly
designated proxies) and only those Persons shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be such Holders after such record date.
No such consent shall be valid or effective for more than 90 days after such
record date.
After an amendment, supplement or waiver becomes effective with respect to
the Securities of any series affected thereby, it shall bind every Holder of
such Securities unless it is of the type described in any of clauses(i) through
(iv) of Section 9.02. In case of an amendment or waiver of the type described in
clauses (i) through (iv) of Section 9.02, the amendment or waiver shall bind
each such Holder who has consented to it and every subsequent Holder of a
Security that evidences the same indebtedness as the Security of the consenting
Holder.
Section 9.04. NOTATION ON OR EXCHANGE OF SECURITIES. If an
amendment, supplement or waiver changes the terms of any Security, the Trustee
may require the Holder thereof to deliver it 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 of such series thereafter authenticated. Alternatively, 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 of the same series and
tenor that reflects the changed terms.
Section 9.05. TRUSTEE TO SIGN AMENDMENTS, ETC. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to customary exceptions. Subject
to the preceding sentence, the Trustee shall sign such amendment, supplement or
waiver if the same does not adversely affect the rights of the Trustee. The
Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
Section 9.06. CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article 9 shall conform to the
requirements of the Trust Indenture Act as then in effect.
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Article X
SUBORDINATION
Section 10.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS. The
Company, for itself and its successors, and each Holder, by his or her
acceptance of Securities, agrees that the payment of the Principal of, premium,
if any, and interest on the Securities is subordinated, to the extent and in the
manner provided in this Article 10, to the right of payment in full to all
present and future Senior Indebtedness, and that these subordination provisions
are for the benefit of the holders of Senior Indebtedness. The provisions of
this Article 10 are for the benefit of the holders of the Senior Indebtedness
from time to time (and their successors and assigns) and shall be enforceable
directly by them and their respective Representatives directly against the
Company, the Trustee and the Holders (and their successors and assigns). The
provisions of this Article 10 shall be a continuing agreement and shall be
irrevocable and shall remain in full force and effect until payment in the full
of the Senior Indebtedness in cash or cash equivalents, and shall constitute a
continuing and irrevocable offer to all Persons who become holders of, or
continue to hold, Senior Indebtedness (whether such Senior Indebtedness was
created or acquired before or after the issuance of the Securities), each of
which holders shall be deemed for the purposes hereof to have acquired Senior
Indebtedness in reliance upon the provisions of this Article 10. The provision
of this Article 10 shall survive the commencement of any reorganization or other
proceedings with respect to the Company or any other Person and the discharge of
any claim in connection with such reorganization or other proceedings,
including, without limitation, the discharge of any Senior Indebtedness.
The holders of the Senior Indebtedness and their respective
representatives are hereby authorized to demand specific performance of the
provisions of this Article 10 at any time when the Company or any Holder shall
have failed to comply with any provision of this Article 10 applicable to it,
and the Company and each Holder hereby irrevocably waives any defense based on
the adequacy of a remedy at law that might be asserted as a bar to the remedy of
specific performance hereof in any action brought therefor by the holders of the
Senior Indebtedness and their respective representatives.
Section 10.02. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) No payment shall be made by or on behalf of the Company on account of any
obligation or, to the extent the subordination thereof is permitted by
applicable law, claim in respect of the Securities, including the Principal of,
premium, if any, or interest on the Securities, or to redeem (or make a deposit
in redemption of), defease (other than payments made by the Trustee pursuant to
Article 8 with respect to a defeasance permitted by this Indenture, including
the subordination provisions herein) or acquire any of the Securities for cash,
property or securities, (i) upon the maturity of the Senior Indebtedness with an
aggregate principal amount in excess of $50 million by lapse of time,
acceleration or otherwise, unless and until all Principal of, premium, if any,
and interest on such Senior Indebtedness and all other obligations in respect
thereof shall first be paid in full in cash or cash equivalents or such payment
is duly provided for, or unless and until any such maturity by acceleration has
been rescinded or waived or (ii) in the event of default in payment of any
Principal of, premium, if any, or interest on or any other amount payable in
respect of the Senior Indebtedness with an aggregate principal amount in excess
of $50 million when it becomes due and payable, whether at maturity or at a date
fixed for prepayment or by
44
declaration or otherwise, unless and until such payment default has been cured
or waived or has otherwise ceased to exist.
(b) Upon the happening of a default (any event that, after notice or
passage of time would be an event of default) or an event of default (any event
that permits the holders of Senior Indebtedness or their representative or
representatives immediately to accelerate its maturity) with respect to any
Senior Indebtedness, other than a default in payment of the Principal of,
premium, if any, or interest on such Senior Indebtedness, upon written notice of
such default or event of default given to the Company and the Trustee by the
holders of a majority of the principal amount outstanding of all Senior
Indebtedness or their representative or representatives, then, unless and until
such default or event of default has been cured or waived or otherwise has
ceased to exist, no payment may be made by or on behalf of the Company with
respect to any obligation or claim in respect of the Securities, including the
Principal of, premium, if any, or interest on the Securities or to redeem (or
make a deposit in redemption of), defease or acquire any of the Securities for
cash, property or securities.
Notwithstanding the foregoing, unless the Senior Indebtedness in respect
of which such default or event of default exists has been declared due and
payable in its entirety within 180 days after the date written notice of such
default or event of default is delivered as set forth above or the date of such
acceleration, as the case may be (the "Payment Blockage Period"), and such
declaration or acceleration has not been rescinded, the Company shall be
required then to pay all sums not paid to the Holders of the Securities during
the Payment Blockage Period due to the foregoing prohibitions and to resume all
other payments as and when due on the Securities. Any number of such notices may
be given; provided, however, that (i) during any 360 consecutive days, only one
Payment Blockage Period shall commence and (ii) any such default or event of
default that existed upon the commencement of a Payment Blockage Period may not
be the basis for the commencement of any other Payment Blockage Period, unless
such default or event of default shall have been cured or waived for a period of
not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing provisions of
this Section 10.02, any payment or distribution of assets of the Company from
any source whether in cash, property or securities, shall be received by the
Trustee or the Holders on account of any obligation or claim in respect of the
Securities at a time when such payment or distribution is prohibited by the
foregoing provisions, such payment or distribution shall be held in trust for
the benefit of the holders of Senior Indebtedness, and shall be paid or
delivered by the Trustee or such Holders, as the case may be, to the holders of
the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay or to provide for the payment in full in
cash or cash equivalents of all such Senior Indebtedness, after giving effect to
any concurrent payment or distribution to the holders of such Senior
Indebtedness.
45
The Company shall give prompt written notice to the Trustee of any default
or event of default, and any cure or waiver thereof, or any acceleration under
any Senior Indebtedness or under any agreement pursuant to which Senior
Indebtedness may have been issued.
Section 10.03. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL
SENIOR INDEBTEDNESS ON DISSOLUTION, LIQUIDATION OR REORGANIZATION OF COMPANY.
Upon any distribution of assets of the Company upon any dissolution, winding up,
total or partial liquidation or reorganization or readjustment of the Company,
whether voluntary or involuntary, in bankruptcy, insolvency, receivership or
similar proceeding or upon assignment for the benefit of creditors, or any other
marshaling of the assets and liabilities of the Company or otherwise:
(a) the holders of all Senior Indebtedness would first be entitled
to receive payment in full in cash or cash equivalents (or have such payment
duly provided for) of the Principal, premium, if any, and interest payable in
respect thereof before the Holders would be entitled to receive any payment on
account of the Principal of, premium, if any, and interest on the Securities;
(b) any payment or distribution of assets of the Company of any kind
or character, from any source, whether in cash, property or securities to which
the Holders or the Trustee on behalf of the Holders would be entitled, except
for the subordination provisions of this Article 10, would be paid by the
liquidating trustee or agent or other person making such a payment or
distribution directly to the holders of Senior Indebtedness remaining unpaid or
unprovided for or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any of
such Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness held or
represented by each, for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay or provide for the payment in
full in cash or cash equivalents of all such Senior Indebtedness, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company from any source, whether in cash, property
or securities, shall be received by the Trustee or the Holders on account of
Principal of or interest on the Securities before all Senior Indebtedness is
paid in full in cash or cash equivalents (or such payment is duly provided for),
such payment or distribution (subject to the provision of Section 10.06 and
10.07) shall be held in trust by the Trustee or such Holders for the benefit of
the holders of the Senior Indebtedness, or their representative, ratably
according to the respective amounts of Senior Indebtedness held or represented
by each, to the extent necessary to make payment in full (except as such payment
otherwise shall have been provided for) of all Senior Indebtedness remaining
unpaid after giving effect to all concurrent payments and distributions and all
provisions therefor to the holders of such Senior Indebtedness, but only to the
extent that as to any holder of Senior Indebtedness, as promptly as practicable
following notice from the Trustee to the holders of Senior Indebtedness that
such prohibited payment has been received by the Trustee or Holder(s), such
holder (or a representative therefor) notifies the Trustee in writing of the
amounts then due and owing on the Senior Indebtedness, if any, held by such
holder and only the amounts specified in such notices to the Trustee shall be
paid to the holders of Senior Indebtedness.
46
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company or
assignment for the benefit of creditors by the Company.
Section 10.04. SECURITYHOLDERS TO BE SUBROGATED TO RIGHTS OF SENIOR
INDEBTEDNESS. Subject to the payment in full in cash or cash equivalents of all
Senior Indebtedness (or provision made for its payment), the Holders of
Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to the Senior Indebtedness until all amounts owing on the Securities
shall be paid in full, in cash or cash equivalents and for the purpose of such
subrogation no such payments or distributions to the holders of Senior
Indebtedness by or on behalf of the Company, or by or on behalf of the Holders
by virtue of this Article 10, which otherwise would have been made to the
Holders shall, as between the Company and the Holders, be deemed to be payment
by the Company to or on account of the Senior Indebtedness, it being understood
that the provisions of this Article 10 are and are intended solely for the
purpose of defining the relative rights of the Holders, on the one hand, and the
holders of Senior Indebtedness, on the other hand. If any payment or
distribution to which the Holders would otherwise have been entitled but for the
provisions of this Article 10 shall have been applied, pursuant to the
provisions of this Article 10, to the payment of amounts payable under Senior
Indebtedness, then the Holders shall be entitled to receive from the holders of
such Senior Indebtedness any payments or distributions received by such holders
of Senior Indebtedness in excess of the amount sufficient to pay all amounts
payable under or in respect of the Senior Indebtedness in full in cash or cash
equivalents.
Section 10.05. OBLIGATIONS OF THE COMPANY UNCONDITIONAL. Nothing
contained in this Article 10 or elsewhere in this Indenture or in the Securities
is intended to or shall impair, as between the Company and the Holders, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders the Principal of, premium, if any, and interest on the Securities as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article 10, of the holders
of Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy. Notwithstanding anything to the
contrary in this Article 10 or elsewhere in this Indenture or in the Securities,
upon any distribution of assets of the Company referred to in this Article 10,
the Trustee and the Holders shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which such dissolution, winding
up, liquidation or reorganization proceeding are pending, or a certificate of
the liquidating trustee or agent or other person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10.
Except as otherwise provided in this Section 10.05, in the event of any
inconsistency between the provisions of this Article 10, on the one part, and
any other provision of this
47
Indenture or any provision of the Securities, on the other part, the provisions
of this Article 10 shall govern.
Section 10.06. TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN
ABSENCE OF NOTICE. The Trustee shall not at any time be charged with knowledge
of the existence of any facts which would prohibit the making of any payment to
or by the Trustee unless and until a Responsible Officer of the Trustee shall
have received, no later than three Business Days prior to such payment, written
notice thereof from the Company or from one or more holders of Senior
Indebtedness or from any representative therefor and, prior to the receipt of
any such written notice, the Trustee shall be entitled in all respects
conclusively to assume that no such fact exists.
Section 10.07. APPLICATION BY TRUSTEE OF ASSETS DEPOSITED WITH IT.
Money or U.S. Government Obligations deposited in trust with the Trustee
pursuant to and in accordance with Section 8.01 shall be for the sole benefit of
Securityholders and, to the extent (i) the making of such deposit by the Company
shall not have been in contravention of any term or provision of any agreement
creating or evidencing Senior Indebtedness and (ii) allocated for the payment of
Securities, shall not be subject to the subordination provisions of this Article
10. Otherwise, any deposit of assets by the Company with the Trustee or any
Paying Agent (whether or not in trust) for the payment of Principal of or
interest on any Securities shall be subject to the provisions of Sections 10.01,
10.02, 10.03 and 10.04; provided, that, if prior to the second Business Day
preceding the date on which by the terms of this Indenture any such assets may
become distributable for any purpose (including without limitation, the payment
of either Principal of or interest on any Securities) the Trustee or such Paying
Agent shall not have received with respect to such assets the written notice
provided for in Section 10.06, then the Trustee or such Paying Agent shall have
full power and authority to receive such assets and to apply the same to the
purpose for which they were received, and shall not be affected by any notice to
the contrary which may be received by it on or after such date.
Section 10.08. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF THE COMPANY, THE TRUSTEE OR HOLDERS OF SENIOR INDEBTEDNESS. No act,
or failure to act, of any holder of the Senior Indebtedness or their respective
representatives (including, without limitation, any action referred to in this
Section 10.08), the Company, the Trustee, any Holder or any other Person with
the terms, covenants or the provisions of this Article 10 (regardless of any
knowledge thereof which any such holder of the Senior Indebtedness may have or
otherwise be charged with) or any reorganization or similar proceeding with
respect to the Company shall affect the provisions of this Article 10, the
obligations owed by the Company, the Trustee or any Holder to the holders of the
Senior Indebtedness under this Article 10 or the rights of any holder of Senior
Indebtedness under this Article 10.
The Company, the Trustee and each Holder each hereby agrees that the
taking of any of the following actions, with or without notice, by the holders
of the Senior Indebtedness and their respective representatives, will not in any
way affect the provisions of this Article 10: (i) changing the manner, place or
terms of payment or extending the time of payment of, or renewing or altering,
any agreement or instrument creating, evidencing or governing any Senior
Indebtedness, or consenting to any amendment or change of any terms of any such
agreement or instrument, each as amended from time to time; (ii) granting
extensions or renewals of any such
48
agreement or instrument and any other indulgence with respect thereto, or
effecting any release, compromise or settlement with respect thereto; (iii)
releasing any Person liable in any manner for the payment or collection of any
Senior Indebtedness; (iv) substituting, exchanging or releasing or otherwise
disposing of any item of security at any time securing any Senior Indebtedness,
whether or not the collateral, if any, received upon the exercise of such power
shall be of a character or value the same as or different from the character or
value of the item of security released; (v) exercising or refraining from
exercising any rights or remedies against the Company or any other Person; and
(vi) taking any other action, or refraining from taking any action, that, in the
absence of authority granted hereby, could have the effect of impairing,
invalidating or rendering unenforceable, in whole or in part, or otherwise
affecting, any of the provisions of this Article 10.
Section 10.09. SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES. Each Holder of the Securities by his or her
acceptance thereof authorizes and expressly directs the Trustee on his or her
behalf to take such action in accordance with the terms of this Indenture as may
be necessary or appropriate to effectuate the subordination provisions contained
in this Article 10 and to protect the rights of the Holders pursuant to this
Indenture, and appoints the Trustee his or her attorney-in-fact for such
purpose, including, in the event of any dissolution, winding up, liquidation or
any reorganization or similar preceding with respect to the Company (whether in
bankruptcy, insolvency or receivership proceedings or upon an assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the
Company) tending towards liquidation of the business and assets of the Company,
the immediate filing of a claim for the unpaid balance of his or her Securities
in the form required in said proceedings and cause said claim to be approved. If
the Trustee does not file a proper claim or proof of debt in the form required
in such proceeding prior to 30 days before the expiration of the time to file
such claim or claims, then the holders of the Senior Indebtedness or their
respective representatives are hereby authorized to have the right to file and
are hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Indebtedness or their respective
representatives to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Indebtedness or their respective
representatives to vote in respect of the claim of any Securityholder in any
such proceeding.
Section 10.10. RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS. The
Trustee shall be entitled to all of the rights set forth in this Article 10 in
respect of any Senior Indebtedness at any time held by it to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.
Section 10.11. ARTICLE 10 NOT TO PREVENT EVENTS OF DEFAULT. The
failure to make a payment on account of Principal of or interest on the
Securities by reason of any provision of this Article 10 shall not be construed
as preventing the occurrence of a Default or an Event of Default under Section
6.01 or in any way prevent the Holders from exercising any right hereunder other
than the right to receive payment on the Securities.
49
Section 10.12. NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR
INDEBTEDNESS. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct, bad faith or negligence) if it shall in
good faith mistakenly pay over or distribute to the Holders of Securities or the
Company or any other person, cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article 10 or
otherwise. Nothing in this Section 10.12 shall affect the obligation of any
other such person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Indebtedness or their representative.
Article XI
MISCELLANEOUS
Section 11.01. TRUST INDENTURE ACT OF 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
Section 11.02. NOTICES. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person, when received or
(b) if mailed by first class mail, 5 days after mailing, or (c) as between the
Company and the Trustee if sent by facsimile transmission, when transmission is
confirmed, in each case addressed as follows:
if to the Company:
Credit Suisse First Boston (USA), Inc.
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Treasury Department
if to the Trustee:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Trust Services
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Institutional Trust Services
The Company or the Trustee by written notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication shall be sufficiently given to Holders of any
Unregistered Securities by publication at least once in an Authorized Newspaper
in The City of New York and at least once in an Authorized Newspaper in London,
and by mailing to the Holders thereof who
50
have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act at such addresses as were so furnished to
the Trustee and to Holders of Registered Securities by mailing to such Holders
at their addresses as they shall appear on the Security Register. Notice mailed
shall be sufficiently given if so mailed within the time prescribed. Copies of
any such communication or notice to a Holder shall also be mailed to the Trustee
and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders. Except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided in this Section 11.02, it is duly given, whether or not the
addressee receives it.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver. In case it shall be impracticable to give notice as
herein contemplated, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder.
Section 11.03. 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:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 11.04. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinion contained in such
certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
51
(iv) a statement as to whether or not, in the opinion of each 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 certificates of public officials.
Section 11.05. EVIDENCE OF OWNERSHIP. The Company, the Trustee and
any agent of the Company or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of such
Unregistered Security or coupon (whether or not such Unregistered Security or
coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. The fact of the holding by any Holder of an Unregistered
Security, and the identifying number of such Security and the date of his
holding the same, may be proved by the production of such Security or by a
certificate executed by any trust company, bank, banker or recognized securities
dealer wherever situated satisfactory to the Trustee, if such certificate shall
be deemed by the Trustee to be satisfactory.
Each such certificate shall be dated and shall state that on the date
thereof a Security bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities dealer by
the person named in such certificate. Any such certificate may be issued in
respect of one or more Unregistered Securities specified therein. The holding by
the person named in any such certificate of any Unregistered Securities
specified therein shall be presumed to continue for a period of one year from
the date of such certificate unless at the time of any determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Securities shall be produced or (2) the Security specified in such
certificate shall be produced by some other Person, or (3) the Security
specified in such certificate shall have ceased to be outstanding. Subject to
Article 7, the fact and date of the execution of any such instrument and the
amount and numbers of Securities held by the Person so executing such instrument
may also be proven in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in any other manner which the Trustee may
deem sufficient.
The Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the person in whose name any Registered Security shall be
registered upon the Security Register for such series as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the Principal of and,
subject to the provisions of this Indenture, interest on such Registered
Security and for all other purposes; and neither the Company nor the Trustee nor
any agent of the Company or the Trustee shall be affected by any notice to the
contrary.
Section 11.06. RULES BY TRUSTEE, PAYING AGENT OR REGISTRAR. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
Section 11.07. PAYMENT DATE OTHER THAN A BUSINESS DAY. If any date
for payment of Principal or interest on any Security shall not be a Business Day
at any place of
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payment, then payment of Principal of or interest on such Security, as the case
may be, need not be made on such date, but may be made on the next succeeding
Business Day at any place of payment with the same force and effect as if made
on such date and no interest shall accrue in respect of such payment for the
period from and after such date.
Section 11.08. GOVERNING LAW. The laws of the State of New York
(without regard to conflicts of laws principles thereof) shall govern this
Indenture and the Securities.
Section 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture or
agreement may not be used to interpret this Indenture.
Section 11.10. SUCCESSORS. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
Section 11.11. DUPLICATE ORIGINALS. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
Section 11.12. SEPARABILITY. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 11.13. TABLE OF CONTENTS, HEADINGS, ETC.. The Table of
Contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms and provisions
hereof.
Section 11.14. INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
OF COMPANY EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or any indenture
supplemental hereto, or in any Security or any coupons appertaining thereto, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.
Section 11.15. JUDGMENT CURRENCY. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the Principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a
53
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a Business Day in The City of New York, then, to the
extent permitted by applicable law, the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
Business Day in The City of New York preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
CREDIT SUISSE FIRST BOSTON (USA), INC.
as the Company
[SEAL] By:
--------------------------------
Name:
Title:
Attest:
By:
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------
Authorized Signatory
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