EXHIBIT 4.7
INNOVATIVE VALVE TECHNOLOGIES, INC.
to
[_________________________________]
as Trustee
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INDENTURE
Dated as of April __, 1998
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Convertible Subordinated Debt Securities
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INDENTURE, dated as of April __, 1998, between INNOVATIVE VALVE
TECHNOLOGIES, INC., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), and [_____________________
____________] a national banking association, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
convertible subordinated debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more series as in this
Indenture provided.
This Indenture is subject to the provisions of the Trust
Indenture Act and the rules and regulations of the Commission promulgated
thereunder which are required to be part of this Indenture and, to the extent
applicable, shall be governed by such provisions.
All things necessary to make this Indenture a valid agreement of
the Company in accordance with its terms have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings
assigned to them in this Article I and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
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(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required and permitted hereunder shall mean
such accounting principles as are generally accepted and adopted by the
Company at the date of this Indenture; and
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and references herein
to "Articles" and "Sections" are to Articles and Sections of this
Indenture unless otherwise specified.
Certain terms used in Articles V, XII, XIII and XIV are defined
in those Articles.
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Additional Amounts" means any additional amounts that are
required by the express terms of a Security or by or pursuant to a Board
Resolution, under circumstances specified therein or pursuant thereto, to be
paid by the Company with respect to certain taxes, assessments or other
governmental charges imposed on certain Holders and that are owing to those
Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the specified Person. For purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of the specified Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in Houston, Texas or
New York, New York are authorized or obligated to close by law or executive
order.
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"Change in Control" has the meaning specified in Section 14.06.
"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 Instrument that Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing those duties at such time.
"Common Stock" includes any stock of any class of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding-up of
the Company and which is not subject to redemption by the Company. However,
subject to the provisions of Section 13.11, shares issuable on conversion of
Securities shall include only shares of the class designated as Common Stock of
the Company at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which are not subject to redemption by the Company; PROVIDED, that if at any
time there shall be more than one such resulting class, the shares of each such
class then so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean that successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or one of its Vice Presidents, and by its Chief Financial Officer, its
Controller, its Treasurer, one of its Assistant Treasurers, its Secretary or one
of its Assistant Secretaries, and delivered to the Trustee.
"Consolidated Subsidiary" means a Subsidiary whose financial
statements are included in the most recent annual consolidated financial
statements of the Company and its Subsidiaries.
"Convertibility Commencement Date," when used with respect to any
Security, means the date fixed by or pursuant to this Indenture as the first
date on which that Security can be converted pursuant to Article XIII.
"Corporate Trust Office" means the office of the Trustee in New
York, New York at which at any particular time its corporate trust business
principally shall be administered.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
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"Credit Facility" means, in each case as amended, restated,
modified, renewed, extended, increased, refunded, replaced or refinanced in
whole or in part from time to time: (a) the Loan Agreement executed as of
October 23, 1997, to be effective as of October 17, 1997, between the Company
and Chase Bank of Texas, National Associaton as Agent and as a Lender, and the
other lenders party thereto from time to time; [AND (B) ONE OR MORE DEBT
FACILITIES WITH BANKS OR OTHER LENDERS PROVIDING FOR REVOLVING CREDIT LOANS,
TERM LOANS, RECEIVABLES FINANCING (INCLUDING THROUGH THE SALE OF RECEIVABLES TO
SUCH LENDERS OR TO SPECIAL PURPOSE ENTITIES FORMED TO BORROW FROM SUCH LENDERS
AGAINST SUCH RECEIVABLES) OR LETTERS OF CREDIT.]
"Current Market Price" has the meaning specified in Section
13.04.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Designated Senior Indebtedness" means (a) the Credit Facility
and (b) any other Senior Indebtedness of the Company the principal amount of
which is [___________] or more and that has been designated by the Company as
"Designated Senior Indebtedness."
"Dollar" or "$" means at any time a dollar or other equivalent
unit in such coin or currency of the United States as at that time shall be
legal tender for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder" means a Person in whose name a Security of any series is
registered in the Security Register for that series.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including the terms of one or more series of Securities established as
contemplated by Section 3.01 and, for all purposes of this instrument and any
such supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and to govern this instrument and any such supplemental
indenture, respectively.
"Initial Conversion Price," when used with respect to any
Security to be converted, means the initial price per share of Common Stock
which is fixed for the conversion of that Security by or pursuant to this
Indenture, subject to adjustment after its issuance (or the earliest issuance of
any of its Predecessor Securities) pursuant to Article XIII.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on that Security.
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"Maturity," when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity thereof or by declaration of
acceleration, redemption or otherwise.
"Obligations" in respect of Senior Indebtedness means any
principal, interest, premiums, fees, indemnifications, reimbursements, damages
and other liabilities payable under the documents governing any such
indebtedness.
"Officers' Certificate" means a certificate, in form reasonably
satisfactory to the Trustee, signed by the Chairman of the Board, the Chief
Executive Officer, the President or a Vice President, and by the Chief Financial
Officer, Controller, the Treasurer or an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion, in form and
substance reasonably satisfactory to the Trustee, of counsel, who may be counsel
for or an employee of the Company, and who shall be reasonably acceptable to the
Trustee.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable on a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount have been theretofore
deposited with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of those
Securities; PROVIDED, that if those Securities, or portions thereof, are
to be redeemed, notice of that redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(c) Securities that have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or
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waiver hereunder, Securities owned by the Company or any other obligor on the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver, only Securities that the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor on the Securities or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means any Person, which may include the Company,
authorized by the Company to pay the principal of and premium, if any, or
interest on any one or more series of Securities on behalf of the Company.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of
any series, means the place or places where the principal of (and premium, if
any) and interest on the Securities of that series are payable as specified in
accordance with Section 3.01, subject to the provisions of Section 10.02.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by that particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Record Date" means either a Regular Record Date or a Special
Record Date, as applicable.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture on the applicable Redemption Date.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the date specified for that purpose as contemplated by
Section 3.01, or, if not so specified, the last day of the calendar month
preceding that Interest Payment Date if that Interest Payment Date is the 15th
day of the calendar month or the 15th day of the calendar month preceding that
Interest
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Payment Date if that Interest Payment Date is the first day of a calendar month,
whether or not that day is a Business Day.
"Representative" means the indenture trustee or other trustee,
agent or representative for any Senior Indebtedness.
"Repurchase Date" has the meaning specified in Section 14.01.
"Repurchase Event" has the meaning specified in Section 14.06.
"Repurchase Price" has the meaning specified in Section 14.01.
"Responsible Officer" means, when used with respect to the
Trustee, the chairman of the Board of Directors, any vice chairman of the Board
of Directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any vice
president (whether or not designated by numbers or words added before or after
the title "vice president"), the cashier, the secretary, the treasurer, any
trust officer, any assistant trust officer, any assistant cashier, any assistant
secretary, any assistant treasurer, or any other officer or assistant officer of
the Trustee customarily performing functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Senior Indebtedness" means the principal of and premium, if any,
and interest on (a) all secured indebtedness of the Company for money borrowed
under any Credit Facility, whether outstanding on the date of execution of this
Indenture or thereafter created, incurred or assumed, and (b) all secured
indebtedness of the Company for money borrowed, whether outstanding on the date
of execution of this Indenture or thereafter created, incurred or assumed, and
any amendments, renewals, extensions, modifications, refinancings, replacements
and refundings of any or all thereof. For the purposes of this definition,
"indebtedness for money borrowed" when used with respect to the Company means
(a) any obligation of, or any obligation guaranteed by, the Company for the
repayment of borrowed money (including without limitation fees, penalties or
other obligations in respect thereof), whether or not evidenced by bonds,
debentures, notes or other written instruments, (b) any deferred payment
obligation of, or any such obligation guaranteed by, the Company for the payment
of the purchase price of property or assets evidenced by a note or similar
instrument, and (c) any obligation of, or any such obligation guaranteed by, the
Company for the payment of rent or other amounts under a lease of property or
assets which obligation is required to be classified and accounted for as a
capitalized lease on the balance sheet of the Company under generally accepted
accounting principles.
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"Significant Subsidiary" means at any time a Subsidiary that is
at that time a "significant subsidiary" of the Company within the meaning of
Rule 1.02(w) of Regulation S-X under the Securities Act of 1933, as amended and
in effect on the date of this Indenture.
"Special Record Date" for the payment of any Defaulted Interest
on the Securities of any series means a date fixed by the Trustee pursuant to
Section 3.07.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, means the date specified in that Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock that ordinarily
has voting power in the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Termination of Trading" has the meaning specified in Section
14.06.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this Indenture was executed; PROVIDED, HOWEVER,
that in the event the Trust Indenture Act of 1939 is amended after that date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Vice President," when used with respect to the Company, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president."
"Yield to Maturity," when used with respect to any Original Issue
Discount Security, means the yield to maturity, if any, set forth on the face
thereof.
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SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS.
On any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by officers of the Company, or an Opinion
of Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual or firm signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation on which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual or
such firm, he has or they have made such examination or investigation as
is necessary to enable him or them to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual or such firm, such condition or covenant has been complied
with.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, on a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters on which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, on a certificate of public officials or on a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the
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possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section. The record of any
meeting of Holders shall be proved in the manner provided in Section 15.06.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 7.01)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
Notwithstanding the foregoing, the Company shall not set a record date for, and
the provisions of this paragraph shall not apply with respect to, any Act by the
Holders pursuant to Section 5.01, 5.02 or 5.12.
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(d) The ownership of Securities of any series shall be proved by
the Security Register for that series.
(e) Any Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued on the
registration of transfer therefor or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(f) Without limiting the foregoing, a Holder entitled hereunder
to give or take any action hereunder with regard to any particular Security may
do so with regard to all or any part of the principal amount of such Security or
by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any Act of Holders or other documents provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its [_______________________
_________________________________________________________________
_______________] or at such superseding address has been previously
furnished in
writing to the Holders and the Company by the Trustee; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company, addressed to it at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ or at such superseding address as has been
previously furnished in writing to the Trustee by the Company.
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, registered or certified with postage prepaid, if
mailed; when answered back if telexed; when receipt acknowledged, if telecopied;
and the next Business Day after timely delivery to the courier, if sent by
nationally recognized overnight air courier guaranteeing next day delivery.
SECTION 1.06. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of Securities
of any series of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if made, given, furnished or filed in
writing to each Holder affected by such event, at his address as it appears in
the Security Register for that series, not later than the latest date (if any),
and not earlier than the
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earliest date (if any), prescribed for the giving of such notice. 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 on such
waiver. All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, registered or certified with postage
prepaid, if mailed; when answered back if telexed; when receipt acknowledged, if
telecopied; and the next Business Day after timely delivery to the courier, if
sent by nationally recognized overnight air courier guaranteeing next day
delivery.
In the case of any notice this Indenture provides shall be given
by mail, if, by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act or another provision that would be required
or deemed under such Act to be a part of and govern this Indenture if this
Indenture were subject thereto, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.09. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and
the Trustee shall bind each of their respective successors and assigns, whether
so expressed or not.
SECTION 1.10. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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SECTION 1.11. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the Holders of Securities and, with respect to Article
XII, the holders of Senior Indebtedness, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
BUT WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
SECTION 1.13. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security or the last date on which a Holder has the right
to convert his Securities shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal and premium, if any, or conversion of the Securities need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, or on such last day for conversion; PROVIDED, that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, to the next succeeding
Business Day.
SECTION 1.14. NO SECURITY INTEREST CREATED.
Nothing in this Indenture or in the Securities, express or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect in any jurisdiction where property of the Company or its Subsidiaries is
or may be located.
SECTION 1.15. LIMITATION ON INDIVIDUAL LIABILITY.
No recourse under or on any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the incorporators, shareholders, officers or
directors, as such, of the Company or any
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successor Person, or any of them, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any Security or implied therefrom;
and that any and all such personal liability of every name and nature, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, shareholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any Security or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Security.
ARTICLE II
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY.
The Securities of each series shall be in substantially such form
or forms as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. A copy of the Board
Resolution establishing the form or forms of Securities or of any series of
Securities shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.03 for the authentication and delivery of those
Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing those Securities, as evidenced by their
execution thereof.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTIFICATION.
The Trustee's certificate of authentification shall be in
substantially the following form:
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"This is one of the Securities of the series designated, described or
provided for in the within-mentioned Indenture.
[__________________________________]
AS TRUSTEE
By__________________________
AUTHORIZED SIGNATORY".
ARTICLE III
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from the Securities of all
other series);
(b) any limit on the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered on
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06,
11.07, 13.02 or 14.05);
(c) the date or dates on which the principal of and any premium
on the Securities of the series is payable or the method of
determination thereof;
(d) the rate or rates (which may vary among Securities of the
series), or the method of determination thereof, at which the Securities
of the series shall bear interest, if any, whether and under what
circumstances Additional Amounts with respect to such Securities shall
be payable, the date or dates from which that interest shall accrue, the
Interest
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Payment Dates on which that interest shall be payable and, if other than
as set forth in Section 1.01, the Regular Record Date for the interest
payable on such Securities on any Interest Payment Date;
(e) the place or places where, subject to the provisions of
Section 10.02, the principal of, any premium or interest on and any
Additional Amounts with respect to the Securities of the series shall be
payable;
(f) the period or periods within which, the price or prices
(whether denominated in cash, securities or otherwise) at which and the
terms and conditions on which (which period or periods, price or prices
and terms and conditions may vary among Securities of the series)
Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have that option, and the
manner in which the Company must exercise any such option;
(g) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices (whether denominated in cash,
securities or otherwise) at which and the terms and conditions on which
(which period or periods, price or prices and terms and conditions may
vary among Securities of the series) Securities of the series shall be
redeemed or purchased in whole or in part pursuant to that obligation;
(h) the denomination in which any Securities of the series shall
be issuable, if other than denominations of $1,000 and any integral
multiple thereof;
(i) the currency or currencies (including composite currencies)
in which payment of the principal of, any premium or interest on and any
Additional Amounts with respect to the Securities of the series shall be
payable if other than Dollars;
(j) if the principal of, any premium or interest on or any
Additional Amounts with respect to the Securities of the series are to
be payable, at the election of the Company or a Holder thereof, in a
currency or currencies (including composite currencies) other than that
in which the Securities are stated to be payable, the currency or
currencies (including composite currencies) in which payment of the
principal of or any premium or interest on or any Additional Amounts
with respect to Securities of the series as to which such election is
made shall be payable, and the periods within which and the terms and
conditions on which that election is to be made;
(k) if the amount of payments of principal of, any premium or
interest on or any additional amounts with respect to the Securities of
the series may be determined with reference to any commodities,
currencies or indices, or values, rates or prices, the manner in which
those amounts shall be determined;
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(l) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of the series which shall
be payable on declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;
(m) any additional means of satisfaction and discharge of this
Indenture with respect to Securities of the series pursuant to Section
4.01 and any additional conditions to discharge pursuant to Section
4.01;
(n) any deletions or modifications of or additions to the Events
of Default set forth in Section 5.01 or covenants of the Company set
forth in Article X pertaining to the Securities of the series;
(o) if the Securities of the series are to be subordinated
pursuant to Article XII to unsecured indebtedness or other liabilities,
the modification for purposes only of the series of the definition of
"Senior Indebtedness" herein; and
(p) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical, except as to denomination and except as is otherwise provided in this
Section 3.01 or may otherwise be provided in or pursuant to the Board Resolution
referred to above and (subject to Section 3.03) set forth, or determined in the
manner provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto.
At the option of the Company, interest on the Securities of any
series that bears interest may be paid by mailing a check to the address of any
Holder as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of that action
together with that Board Resolution shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of the series.
SECTION 3.02. DENOMINATIONS.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 3.01. In the
absence of any such provisions with respect to the Securities of any series, the
Securities of that series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiple thereof. Unless otherwise
provided as contemplated by Section 3.01 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the equivalent, as
determined by the Company by reference to the noon buying rate in The City of
New
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York for cable transfers for such currency, as such rate is reported or
otherwise made available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, of $1,000 and any integral multiple
thereof.
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President, its Chief
Financial Officer or one of its Vice Presidents, under its corporate seal or a
facsimile thereof reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of those Securities; and the
Trustee in accordance with such Company Order shall either at one time or from
time to time pursuant to such instructions as may be described therein
authenticate and deliver such Securities as in this Indenture provided and not
otherwise. Such Company Order shall specify (or will state that an Officers'
Certificate will specify) the amount of Securities to be authenticated and the
date on which the original issue of Securities is to be authenticated, and shall
certify (or a related Officers' Certificate shall certify) that all conditions
precedent to the issuance of such Securities contained in this Indenture have
been complied with.
If the form or terms of the Securities of any series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.01, in authenticating those Securities, and accepting the
additional responsibilities under this Indenture in relation to those
Securities, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying on, an Opinion of Counsel stating:
(a) if the form of those Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.01, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of those Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.01, that such
terms have been established in conformity with the provisions of this
Indenture; and
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(c) that those Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as such enforcement is subject to the effect of
(i) bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally, (ii) general
principles of equity (regardless of whether that enforcement is
considered in a proceeding in equity or at law) and (iii) any implied
covenant of good faith and fair dealing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature, and such certificate on any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of the Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.09 together with a written statement
(which need not comply with Section 1.03 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
The Trustee may appoint an Authenticating Agent pursuant to the
terms of Section 6.14.
SECTION 3.04. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series,
the Company may execute, and on Company Order the Trustee shall authenticate and
deliver, temporary Securities of that series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing those Securities may determine, as
evidenced by their execution of those Securities. Every such temporary Security
shall be executed by the Company and shall be authenticated and delivered by the
Trustee on the same conditions and in substantially the same manner, and with
the same effect, as the definitive Security or Securities in lieu of which it is
issued.
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If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of any
series, the temporary Securities of that series shall be exchangeable for those
definitive Securities on surrender of the temporary Securities at any office or
agency of the Company designated pursuant to Section 10.02, without charge to
the Holder. On surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities
of the same series and of like tenor, of any authorized denominations and of a
like aggregate principal amount. Until so exchanged the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of that series.
SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept for each series of
Securities at one of the offices or agencies maintained pursuant to Section
10.02 a register (the register maintained in such office and in any other office
or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities of that series. The
Trustee is hereby initially appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
(b) On surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series and of like tenor, of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series and of like tenor, of any
authorized denominations and of a like aggregate principal amount, on surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities that the Holder making
the exchange is entitled to receive.
(c) All Securities issued on any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered on such registration of transfer or exchange.
(d) Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
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(e) No service charge shall be made for any registration of
transfer or exchange of Securities, except as provided in Section 3.06. The
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
3.04, 9.06, 11.07, 13.02 or 14.05 not involving any transfer.
(f) The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption and ending at
the close of business on the day of the mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security of any series is surrendered to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (b) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding. The Trustee may charge the Company for the
Trustee's expenses in replacing such Security.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
On the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section
3.06 in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
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The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. Unless otherwise provided with respect to the Securities of any
series, payment of interest may be made at the option of the Company by check
mailed or delivered to the address of any Person entitled thereto as such
address shall appear in the Securities Register.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) of that series are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of
that series at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities (or their respective
Predecessor Securities) of that series are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).
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(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which those
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause (b), such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 3.07, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security of any series which is converted
after any Regular Record Date and on or prior to the next succeeding Interest
Payment Date (other than any Security whose Maturity is prior to such Interest
Payment Date), interest on that Security whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Security (or one or more of its Predecessor Securities) is registered at the
close of business on such Regular Record Date, PROVIDED, HOWEVER, that
Securities of any series so surrendered for conversion shall (except in the case
of those Securities or portions thereof called for redemption) be accompanied by
payment in New York Clearing House funds or other funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment Date
on the principal amount being surrendered for conversion. Except as otherwise
expressly provided in the immediately preceding sentence, in the case of any
Security of any series which is converted, interest whose Stated Maturity is
after the date of conversion of that Security shall not be payable.
SECTION 3.08. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name that Security is registered as the owner of
that Security for the purpose of receiving payment of principal of and premium,
if any, and (subject to Section 3.07) interest on that Security and for all
other purposes whatsoever, whether or not that Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.09. CANCELLATION.
All Securities surrendered for payment, redemption, registration
of transfer, exchange or conversion shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly canceled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly
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canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
SECTION 3.10. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.01 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 IV
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall on Company Request cease to be of further
effect (except as expressly provided for in this Article IV), and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered
(other than (A) Securities that have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 3.06 and (B) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or
(ii) all those Securities not theretofore delivered to the
Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, or
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(D) are delivered to the Trustee for conversion in
accordance with Article XIII,
and the Company, in the case of (A), (B), (C) or (D) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose of paying an amount in cash
sufficient (without consideration of any investment of such cash) to pay
and discharge the entire indebtedness on those Securities not
theretofore delivered to the Trustee for cancellation for principal and
premium, if any, and interest and Additional Amounts, if any, to the
date of such deposit (in the case of Securities that have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be; PROVIDED that the Trustee is irrevocably instructed to apply such
amount to said payments with respect to those Securities;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the following rights or obligations under the Securities and this Indenture
shall survive until otherwise terminated or discharged hereunder: (a) Article
XIII, Article XIV and the Company's obligations under Sections 3.04, 3.05, 3.06,
10.02 and 10.03, in each case with respect to any Securities described in
subclause (ii) of clause (a) of this Section 4.01, (b) this Article IV, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder,
including the obligations of the Company to the Trustee under Section 6.07, and
the obligations of the Trustee or the Company to any Authenticating Agent under
Section 6.14 and (d) if money shall have been deposited with the Trustee
pursuant to subclause (ii) of clause (a) of this Section 4.01, the rights of
Holders of any Securities described in that subclause (ii) to receive, solely
from the trust fund described in that subclause (ii), payments in respect of the
principal of, and premium (if any) and interest on and Additional Amounts (if
any) with respect to, those Securities when such payments are due.
SECTION 4.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.03,
all money deposited with the Trustee pursuant to Section 4.01 shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
interest and Additional Amounts, if any, for whose payment such money has been
deposited with the Trustee. All moneys deposited with the Trustee pursuant to
Section 4.01 (and held by it or any Paying Agent) for the
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payment of Securities subsequently converted shall be returned to the Company on
Company Request.
SECTION 4.03. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money
in accordance with this Article IV by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article IV until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust with respect to the Securities;
PROVIDED, HOWEVER, that if the Company makes any payment of principal of, any
premium or interest on or any Additional Amounts with respect to any Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of the Securities to receive such payment from the
money so held in trust.
ARTICLE V
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for that Event of Default and whether it shall be occasioned by the
provisions of Article XII or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it either is inapplicable to a particular series of Securities or is
specifically deleted or modified in or pursuant to the supplemental indenture or
Board Resolution establishing that series or in the form of the Security for
that series;
(a) default in the payment of the principal of or premium, if
any, on any Security of that series at its Maturity, whether or not such
payment is prohibited by the provisions of Article XII; or
(b) default in the payment of any interest on or any Additional
Amounts with respect to any Security of that series when it becomes due
and payable, whether or not such payment is prohibited by the provisions
of Article XII, and continuance of such default for a period of 30 days;
or
(c) failure to provide timely notice of a Repurchase Event in
accordance with the provisions of Article XIV; or
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(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section 5.01 specifically dealt with or which has been expressly
included in this Indenture solely for the benefit of one or more series
of Securities other than that series), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) default under one or more bonds, notes, debentures or other
evidences of indebtedness for money borrowed by the Company or any
Consolidated Subsidiary or under one or more mortgages, indentures or
instruments under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Company
or any Consolidated Subsidiary, whether such indebtedness now exists or
shall hereafter be created, which default individually or in the
aggregate shall constitute a failure to pay the principal of
indebtedness in excess of $10,000,000 when due and payable after the
expiration of any applicable grace period with respect thereto or shall
have resulted in the principal of indebtedness in excess of $10,000,000
becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded or
annulled, within a period of 30 days after there shall have been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded
or annulled and stating that such notice is a "Notice of Default"
hereunder; or
(f) the filing or commencement of an involuntary case or other
proceeding against the Company or any Significant Subsidiary of the
Company seeking liquidation, reorganization or other relief with respect
to it or its debts under any bankruptcy, insolvency or other similar law
now or thereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 90
days; or an order for relief shall be entered against the Company or any
Significant Subsidiary of the Company under the federal bankruptcy laws
as now or hereafter in effect; or
(g) the filing or commencement by the Company or any Significant
Subsidiary of the Company of a voluntary case or other proceeding
seeking liquidation, reorganization or other similar relief with respect
to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect, or seeking the appointment of a trustee,
receiver,
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liquidator, custodian or other similar official of it or any substantial
part of its property, or the Company or any Significant Subsidiary of
the Company shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it or shall make a general assignment for
the benefit of creditors; or
(h) any other Event of Default provided with respect to
Securities of that series as contemplated by Section 3.01.
Notwithstanding the foregoing provisions of this Section 5.01, if
the principal of, any premium or any interest on or any Additional Amounts with
respect to the Securities of any series is payable in a currency or currencies
(including a composite currency) other than Dollars and such currency (or
currencies) is (or are) not available to the Company for making payment thereof
because of the imposition of exchange controls or other circumstances beyond the
control of the Company (a "Conversion Event"), the Company will be entitled to
satisfy its obligations to Holders of the Securities of that series by making
such payment in Dollars in an amount equal to the Dollar equivalent of the
amount payable in such other currency currencies, as determined by the Company
by reference to the noon buying rate in The City of New York for cable transfers
for such currency ("Exchange Rate"), as such Exchange Rate is certified for
customs purposes by the Federal Reserve Bank of New York on the date of such
payment, or, if such rate is not then available, on the basis of the most
recently available Exchange Rate. Notwithstanding the foregoing provisions of
this Section 5.01, any payment made under such circumstances in Dollars where
the required payment is in a currency or currencies other than Dollars will not
constitute an Event of Default under this Indenture.
Promptly after the occurrence of a Conversion Event respecting
Securities of any series, the Company shall give written notice thereof to the
Trustee; and the Trustee, promptly after receipt of such notice, shall give
notice thereof in the manner provided in Section 1.06 to the Holders of those
Securities. Promptly after the making of any payment in Dollars as a result of a
Conversion Event respecting Securities of any series, the Company shall give
notice in the manner provided in Section 1.06 to the Holders of those
Securities, setting forth the applicable Exchange Rate and describing the
calculation of such payments.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to any Outstanding Securities
of any series occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of (a) the series affected by such default (in the case of an Event
of Default described in clause (a), (b), or (h) of Section 5.01) or (b) all
series of Securities (subject to the immediately following sentence, in the case
of other Events of Default) may declare the principal amount (or, if any such
Securities are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the Securities of
the series affected by such default or all series, as the case may be, to be due
and
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payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and on any such declaration such principal amount (or
specified amount) shall become immediately due and payable. If an Event of
Default described in clause (f) or (g) of Section 5.01 shall occur, the
principal amount of the Outstanding Securities of all series IPSO FACTO shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect
to Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article V provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest on, and any Additional Amounts
with respect to, all Securities of that series (or of all series,
as the case may be),
(ii) the principal of (and premium, if any, on) any
Securities of that series (or of all series, as the case may be)
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities (in the case of Original Issue
Discount Securities, the Securities' Yield to Maturity),
(iii) to the extent that payment of such interest is
lawful, interest on overdue interest and any Additional Amounts
at the rate or rates prescribed therefor in such Securities (in
the case of Original Issue Discount Securities, the Securities'
Yield to Maturity) and
(iv) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(b) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the
non-payment of the principal of Securities of that series (or of all
series, as the case may be) which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any interest on or any
Additional Amounts with respect to any Security of any series when such
interest or Additional Amounts shall have become due and payable and
such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of or
premium, if any, on any Security of any series at the Maturity thereof,
the Company will, on demand of the Trustee, pay to it, for the benefit of the
Holders of the Securities of that series, the whole amount then due and payable
on those Securities for principal and premium, if any, and interest and any
Additional Amounts, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium, if any, and
on any overdue interest and Additional Amounts, at the rate borne by those
Securities (or in the case of Original Issue Discount Securities, the Yield to
Maturity of those Securities), and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee and
each predecessor Trustee, their respective agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 6.07.
If the Company fails to pay such amounts forthwith on such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid
and may prosecute any such proceeding to judgment or final decree, and may
enforce the same against the Company (or any other obligor on those Securities)
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company (or any other obligor on those
Securities), wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of those Securities by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or
any other obligor on the Securities of any series), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have the claims of the applicable Holders and the
Trustee allowed in any such proceeding. In particular, the Trustee shall be
authorized to collect and receive any
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moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each applicable 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 applicable Holders, to pay to the Trustee any amount due it and
each predecessor Trustee for the reasonable compensation, expenses,
disbursements and advances of the Trustee and each predecessor Trustee and their
respective agents and counsel, and any other amounts due the Trustee under
Section 6.07.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
Securities of any series any plan of reorganization, arrangement, adjustment or
composition affecting those Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of that Holder in any such
proceeding; PROVIDED, HOWEVER, that the Trustee may, on behalf of the Holders of
those Securities, vote for the election of a trustee in bankruptcy or similar
official and may be a member of the Creditors' Committee.
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of those Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee and each
predecessor Trustee and their respective agents and counsel, be for the ratable
benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
SECTION 5.06. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article V
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
of, premium, if any, or interest on or any Additional Amounts with respect to
the Securities of any series, on presentation of those Securities and the
notation thereon of the payment if only partially paid and on surrender thereof
if fully paid:
FIRST: Subject to Article XII, to the holders of Senior
Indebtedness;
SECOND: To payment of all amounts due the Trustee under Section
6.07;
THIRD: To the payment of the amounts then due and unpaid for
principal of, premium, if any, and interest on and any Additional Amounts with
respect to the Securities in respect of which or for the benefit of which such
money has been collected, ratably,
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without preference or priority of any kind, according to the amounts due
and payable on those Securities for principal, premium, if any, interest
and Additional Amounts, respectively; and
FOURTH: The balance, if any, to the Company or any other Person
or Persons determined to be entitled thereto.
To the fullest extent allowed under applicable law, if for the
purpose of obtaining judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of or any premium or interest
on or any Additional Amounts with respect to the Securities of any series (the
"Required Currency") into a currency in which a judgment will be rendered (the
"Judgment Currency"), the rate of exchange used will 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 New York
Business Day next preceding that on which final judgment is given. Neither the
Company nor the Trustee will be liable for any shortfall nor will either the
Company or the Trustee it benefit from any windfall in payments to Holders of
Securities under this Section 5.06 caused by a change in exchange rates between
the time the amount of a judgment against the Company is calculated as above and
the time the Trustee converts the Judgment Currency into the Required Currency
to make payments under this Section 5.06 to Holders of Securities, but payment
of that judgment will discharge all amounts owed by the Company on the claim or
claims underlying that judgment.
SECTION 5.07. LIMITATION ON SUITS.
No Holder of any Security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(a) an Event of Default with respect to Securities of that series
has occurred and is continuing and that Holder has previously given
written notice to the Trustee of that continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity satisfactory to it against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
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(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of those Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
those Holders, or to obtain or to seek to obtain priority or preference over any
other of those Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all those
Holders.
SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM,
INTEREST AND TO CONVERT.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and (subject to Section
3.07) interest on and any Additional Amounts with respect to such Security on
the respective Stated Maturities expressed in that Security (or, in the case of
redemption, on the Redemption Date or, in the case of a repurchase pursuant to
Article XIV, on the Repurchase Date) and to convert such Security in accordance
with Article XIII and to institute suit for the enforcement of any such payment
and right to convert, and such rights shall not be impaired without the consent
of that Holder.
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of Securities of any series has
instituted any proceeding to enforce any right or remedy under this Indenture
and that proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to that Holder, then and in every
such case, subject to any determination in that proceeding, the Company, the
Trustee and the Holders of Securities of that series shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and those Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 3.06, no
right or remedy herein conferred on 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 5.11. DELAY OR OMISSION NOT WAIVER.
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No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing on any Event of Default with
respect to that Security 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 V or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 5.12. CONTROL BY HOLDERS.
With respect to Securities of any series, the Holders of a
majority in principal amount of the Outstanding Securities of that series shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee relating to or arising under an Event of Default
described in clause (a), (b) or (h) of Section 5.01, and with respect to all
Securities the Holders of a majority in principal amount of all Outstanding
Securities shall have the right to direct the time, method and place of
conducting any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, not relating to or arising under such an Event of
Default; PROVIDED, that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(c) subject to the provisions of Section 6.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
good faith shall determine that the action so directed would involve the
Trustee in personal liability or would be unduly prejudicial to Holders
not joining in such direction.
SECTION 5.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of that series waive any past default hereunder with respect to that
series and its consequences, and the Holders of a majority in principal amount
of all Outstanding Securities may on behalf of the Holders of all Securities
waive any other past default hereunder and its consequences, except in each case
a default
(a) in the payment of the principal of or premium, if any, or
interest on or any Additional Amounts with respect to any Security, or
(b) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
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On any such waiver, the waived default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.14 shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of, or premium,
if any, or interest on or any Additional Amounts with respect to any Security on
or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
ARTICLE VI
THE TRUSTEE
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as
provided by this Indenture and the Trust Indenture Act for securities issued
pursuant to indentures qualified thereunder. Except as otherwise provided
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 or risk in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
satisfactory to it against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
6.01. The Trustee shall not be liable (a) for any error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts or (b) with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of not less than a
majority in aggregate principal amount of the then Outstanding Securities of any
series or all series, determined as provided in Section 5.12, relating to the
time, method and place of conducting any
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proceeding or any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, under this Indenture with respect to those
Securities. Prior to the occurrence of an Event of Default with respect to
Securities of any series and after the curing or waiving of all Events of
Default with respect to all series which may have occurred: (a) the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Indenture and in the Trust Indenture Act, and the Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture and in the Trust Indenture Act, and no
implied covenants or obligations shall be read in to this Indenture against the
Trustee; and (b) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions therein, on any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture
and believed by the Trustee to be genuine and to have been signed or presented
by the proper party or parties; but in the case of any such statements,
certificates or options which by any provisions hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform on their face to the requirements
of this Indenture. If a default or an Event of Default with respect to
Securities of any series has occurred and is continuing, the Trustee shall
exercise the rights and powers vested in it by this Indenture and use the same
degree of care and skill in its exercise thereof as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
SECTION 6.02. NOTICE OF DEFAULTS.
The Trustee shall give the Holders of Securities of each series
notice of any default hereunder with respect to the Securities of that series
known to it as and to the extent provided by the Trust Indenture Act; PROVIDED,
HOWEVER, that in the case of any default with respect to the Securities of that
series of the character specified in Section 5.01(d), no such notice to those
Holders shall be given until at least 30 days after the occurrence thereof; and
PROVIDED, FURTHER, that, except in the case of a default in payment of principal
of, premium, if any, or interest on or any Additional Amounts with respect to
any Securities of any series, the Trustee may withhold notice to the Holders of
those Securities if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of those
Holders. For the purpose of this Section 6.02, the term "default" with respect
to the Securities of any series means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to those
Securities.
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting on any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely on an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) before the Trustee acts or refrains from acting with respect
to any matter contemplated by this Indenture, it may require an
Officers' Certificate or an Opinion of Counsel, which shall conform to
the provisions of Section 1.02, and the Trustee shall be protected and
shall not be liable for any action it takes or omits to take in good
faith and without gross negligence in reliance on such certificate or
opinion;
(g) the Trustee shall not be required to give any bond or surety
in respect of the performance of its power and duties hereunder;
(h) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(i) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
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SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The statements and recitals contained herein and in the
Securities and in any other document in connection with the sale of the
Securities, except the Trustee's certificate of authentication, shall be taken
as the statements of the Company, and the Trustee and any Authenticating Agent
assume no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee and any Authenticating Agent shall not be accountable
for the use or application by the Company of Securities or the proceeds thereof.
SECTION 6.05. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company or any Affiliate of
the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.06. MONEY HELD IN TRUST.
Money held by the Trustee or any Paying Agent in trust hereunder
need not be segregated from other funds except to the extent required by law.
The Trustee or any Paying Agent shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (including its
services as Security Registrar or Paying Agent, if so appointed by the
Company) as may be mutually agreed on in writing by the Company and the
Trustee (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Trustee and each predecessor Trustee promptly on its request for all
reasonable expenses, disbursements and advances incurred or made by or
on behalf of it in connection with the performance of its duties under
any provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel and all
other persons not regularly in its employ) except to the extent any such
expense, disbursement or advance may be attributable to its negligence
or bad faith; and
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(c) to indemnify the Trustee and each predecessor Trustee (each,
an "indemnitee") for, and to hold the indemnitee harmless against, any
loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder (including its services as Security Registrar or Paying Agent,
if so appointed by the Company), including enforcement of this Indenture
(including this Section 6.07) and including the costs and expenses of
defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder. The Company shall defend any claim or threatened claim
asserted against an indemnitee for which it may seek indemnity, and the
indemnitee shall cooperate in the defense unless, in the reasonable
opinion of the indemnitee's counsel, the indemnitee has an interest
adverse to the Company or a potential conflict of interest exists
between the indemnitee and the Company, in which case the indemnitee may
have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel; PROVIDED that the Company shall only be
responsible for the reasonable fees and expenses of one law firm (in
addition to local counsel) in any one action or separate substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, such law firm to be designated by the
indemnitee.
As security for the performance of the obligations of the Company
under this Section 6.07, the Trustee shall have a lien prior to 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, and
the Securities are hereby subordinated to such prior lien. The obligations of
the Company under this Section to compensate and indemnify the Trustee and any
predecessor Trustee and to pay or reimburse the Trustee and any predecessor
Trustee for expenses, disbursements and advances, and any other amounts due the
Trustee or any predecessor Trustee under this Section 6.07, shall constitute an
additional obligation hereunder and shall survive the satisfaction and discharge
of this Indenture.
When the Trustee or any predecessor Trustee incurs expenses or
renders services in connection with the performance of its obligations hereunder
(including its services as Security Registrar or Paying Agent, if so appointed
by the Company) after an Event of Default specified in Section 5.01(f) or (g)
occurs, those expenses and the compensation for those services are intended to
constitute expenses of administration under any applicable bankruptcy,
insolvency or other similar federal or state law to the extent provided in
Section 503(b)(5) of Title 11 of the United States Code, as now or hereafter in
effect.
SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section 6.08, with respect to the Securities of any series,
it shall, within 90 days after ascertaining that it has such conflicting
interest, either eliminate that conflicting interest or resign with respect
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to the Securities of that series in the manner and with the effect hereinafter
specified in this Article VI.
(b) In the event that the Trustee shall fail to comply with the
provisions of paragraph (a) of this Section 6.08 with respect to the Securities
of any series, the Trustee shall, within 10 days after the expiration of the
90-day period referred to in that paragraph (a), transmit by mail to all Holders
of Securities of that series, as their names and addresses appear in the
Security Register for that series, notice of that failure.
(c) For the purposes of this Section, the term "conflicting
interest" shall have the meaning specified in Section 310(b) of the Trust
Indenture Act and the Trustee shall comply with Section 310(b) of the Trust
Indenture Act; PROVIDED, that there shall be excluded from the operation of
Section 310(b)(1) of the Trust Indenture Act with respect to the Securities of
any series any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in Section
310(b)(1) of the Trust Indenture Act are met. For purposes of the preceding
sentence, the optional provision permitted by the second sentence of Section
310(b)(9) of the Trust Indenture Act shall be applicable.
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
Person that (i) is eligible pursuant to the Trust Indenture Act to act as such,
(ii) has (or, in the case of a corporation included in a bank holding company
system, whose related bank holding company has) a combined capital and surplus
of at least $50,000,000 and (iii) has a Corporate Trust Office in the Borough of
Manhattan, The City of New York, or a designated agent. If such Person publishes
reports of conditions at least annually, pursuant to law or to the requirements
of a Federal or state supervising or examining authority, then for the purposes
of this Section 6.09, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.09, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article VI.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article VI shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee for those
Securities which is required by Section 6.11 shall not have been delivered to
the resigning Trustee within 30 days after the giving of such notice of
resignation, the
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resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee for those Securities.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by an Act of the Holders of a majority in principal
amount of the Outstanding Securities of that series delivered to the Trustee and
to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08
with respect to the Securities of any series after written request
therefor by the Company or by any Holder who has been a bona fide Holder
of a Security of that series for the last six months, or
(ii) the Trustee shall cease to be eligible under Section
6.09 with respect to the Securities of any series and shall fail to
resign after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security of that series for the
last six months, or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to the Securities of all series, or (ii) subject to Section
5.14, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to those Securities (it being agreed that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of those series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and such successor Trustee or Trustees
shall comply with the applicable requirements of Section 6.11. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company and accepted appointment in the manner required by
Section 6.11, any Holder who has been a bona fide Holder of a Security of that
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of that
series.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of the Securities of that series in the manner provided in
Section 1.06. Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, on payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each such successor Trustee so appointed shall execute and
deliver an indenture supplemental hereto wherein each such successor Trustee
shall accept such appointment and which (i) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each
such successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and on the
execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any such successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates.
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(c) On request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section 6.11, as the case may be.
(d) No successor Trustee shall accept its appointment unless, at
the time of that acceptance, that successor Trustee shall be qualified and
eligible under this Article VI.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article VI, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated those Securities.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor on the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents
acceptable to and at the expense of the Company which shall be authorized to act
on behalf of the Trustee to authenticate Securities issued on original issue and
on exchange, registration of transfer, partial conversion or partial redemption
or pursuant to Section 3.06, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a Person organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having (or, in the case of a corporation included in a bank holding
company system, whose related bank holding company has) a combined capital and
surplus of not less than $50,000,000 and subject
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to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section 6.14, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 6.14.
Any Person into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such Person shall be otherwise eligible under this Section 6.14,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. On receiving such a notice of
resignation or on such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section 6.14, the Trustee may appoint a successor Authenticating Agent
acceptable to the Company and shall mail notice of such appointment by
first-class mail, postage prepaid, to all Holders of Securities for which such
successor Authenticating Agent has been appointed as their names and addresses
appear in the Security Register. Any successor Authenticating Agent on
acceptance of its appointment under this Section 6.14 shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like effect
as if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible to act as such under the provisions of
this Section 6.14.
Any Authenticating Agent by the acceptance of its appointment
shall be deemed to have represented to the Trustee that it is eligible for
appointment as Authenticating Agent under this Section 6.14 and to have agreed
with the Trustee that: it will perform and carry out the duties of an
Authenticating Agent as herein set forth, including, among other duties, the
duties to authenticate Securities when presented to it in connection with the
original issuance and with exchanges, registrations of transfer or redemptions
or conversions thereof or pursuant to Section 3.06; it will keep and maintain,
and furnish to the Trustee from time to time as requested by the Trustee,
appropriate records of all transactions carried out by it as Authenticating
Agent and will furnish the Trustee such other information and reports as the
Trustee may reasonably require; and it will notify the Trustee promptly if it
shall cease to be eligible to act as Authenticating Agent in accordance with the
provisions of this Section 6.14. Any Authenticating Agent by the acceptance of
its appointment shall be deemed to have agreed with the Trustee to indemnify the
Trustee against any loss, liability or expense incurred by the Trustee and to
defend any claim asserted against the Trustee by reason
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of any acts or failures to act of such Authenticating Agent, but such
Authenticating Agent shall have no liability for any action taken by it in
accordance with the specific written direction of the Trustee.
The Trustee shall not be liable for any act or any failure of the
Authenticating Agent to perform any duty either required herein or authorized
herein to be performed by such person in accordance with this Indenture.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the following
form:
"This is one of the Securities of the series designated,
described or provided for in the within-mentioned Indenture.
[__________________________________]
AS TRUSTEE
By
AS AUTHENTICATING AGENT
By
AUTHORIZED SIGNATORY"
Notwithstanding any provision of this Section 6.14 to the
contrary, if at any time any Authenticating Agent appointed hereunder with
respect to any series of Securities shall not also be acting as the Security
Registrar hereunder with respect to that series of Securities, then, in addition
to all other duties of an Authenticating Agent hereunder, such Authenticating
Agent shall also be obligated: (a) to furnish to the Security Registrar for that
series of Securities promptly all information necessary to enable that Security
Registrar to maintain at all times an accurate and current Security Register for
that series of Securities; and (b) prior to authenticating any Security of that
series denominated in a foreign currency, to ascertain from the Company the
units of such foreign currency that are required to be determined by the Company
pursuant to Section 3.02.
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
with respect to each series of Securities:
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of the Securities of that
series as of such Regular Record Date and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished.
Notwithstanding the foregoing, so long as the Trustee is the Security Registrar,
no such list shall be required to be furnished.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities of each
series contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders of those Securities received
by the Trustee in its capacity as Security Registrar. The Trustee may destroy
any list furnished to it as provided in Section 7.01 on receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act or otherwise in accordance with this Indenture.
SECTION 7.03. REPORTS BY TRUSTEE.
(a) Not later than 60 days following each May 15, the Trustee
shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto.
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(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange on
which the Securities of any series are listed, with the Commission and with the
Company. The Company will notify the Trustee when the Securities are listed on
any stock exchange.
SECTION 7.04. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to the Trust Indenture Act; PROVIDED,
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person in one transaction or a series of related
transactions, and the Company shall not permit any Person to consolidate with or
merge into the Company, unless:
(a) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person in one transaction or a
series of related transactions, the Person formed by such consolidation
or into which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of
the Company substantially as an entirety shall be a corporation,
partnership, limited liability company or trust, shall be organized and
validly existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of the
principal of, premium, if any, and interest on and any Additional
Amounts with respect to all the Securities and the performance or
observance of every covenant of this Indenture on the part of the
Company to be performed or observed and shall have provided for
conversion rights in accordance with Section 13.11;
(b) immediately after giving effect to such transaction, no Event
of Default with respect to Securities of any series, and no event which,
after notice or lapse of time or both,
- 47 -
would become an Event of Default with respect to Securities of any
series, shall have occurred and be continuing;
(c) such consolidation, merger, conveyance, transfer or lease
does not adversely affect the validity or enforceability of the
Securities of any series; and
(d) the Company or the successor Person has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article VIII and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 8.02. SUCCESSOR SUBSTITUTED.
On any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease the
properties and assets of the Company substantially as an entirety to any Person
in one transaction or a series of related transactions in accordance with
Section 8.01, the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a transfer by lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(a) to set forth the terms of the Securities of any unissued
series, including the additional indebtedness or other liabilities to
which the Securities of that series will be subordinated as contemplated
by Section 3.01; or
- 48 -
(b) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(c) for the benefit of the Holders of Securities of any or all
series, to add to the covenants of the Company, add an additional Event
of Default or surrender any right or power conferred herein or in the
Securities of any series on the Company (and if any such covenant, Event
of Default or surrender is to be for the benefit of Holders of
Securities of less than all series, stating that such covenants, Event
of Default or surrender is or are being included solely for the benefit
of the Holders of Securities of those series referred to in the
supplemental indenture); or
(d) to secure the Securities of any or all series; or
(e) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Section 13.11; or
(f) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision;
or
(g) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Section 4.01;
PROVIDED, HOWEVER, that any such action shall not adversely affect the
interest of the Holders of Securities of such series or any other series
of Securities in any material respect; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(i) to cure any ambiguity or omission, to correct or supplement
any provision herein or in the Securities of any or all series which may
be defective or inconsistent with any other provision herein or in the
Securities of any or all series, or to make any other provisions with
respect to matters or questions arising under this Indenture which shall
not be inconsistent with the provisions of this Indenture; PROVIDED,
that such action pursuant to this clause (i) shall not adversely affect
the interests of the Holders of Securities of any series in any material
respect and the Trustee may rely on an Opinion of Counsel to that
effect.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
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With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, or, if the rights of one or more, but less than
all, series of Outstanding Securities are to be affected, then with the consent
of the Holders of not less than a majority in principal amount of all the series
of Outstanding Securities so to be affected, by Act of said Holders (acting as
one class) delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this Indenture;
PROVIDED, HOWEVER, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, any Additional
Amounts with respect thereto or any premium payable on the redemption
thereof, or reduce the amount of the principal of any Original Issue
Discount Security that would be due and payable on a declaration of
acceleration of the Maturity thereof pursuant to Section 5.02, or change
any Place of Payment where, or the coin or currency or currencies
(including composite currencies) in which, any Security or any premium
or any interest thereon or Additional Amount with respect thereto is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or adversely
affect the right to convert any Security as provided in Article XIII
(except as permitted by Section 9.01(e)), or modify the provisions of
Article XIV, or the provisions of this Indenture with respect to the
subordination of the Securities (except as contemplated by Section 3.01
and permitted by Section 9.01(a)), in a matter adverse to the Holders;
or
(b) reduce the percentage in principal amount of Outstanding
Securities the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(c) modify any of the provisions of this Section 9.02, Section
5.13 or Section 10.06, except to increase any percentage provided herein
or therein or to provide with respect to any particular series the right
to condition the effectiveness of any supplemental indenture as to that
series on the consent of the Holders of a specified percentage of the
aggregate principal amount of Outstanding Securities of that series
(which provision may be made pursuant to Section 3.01 without the
consent of any Holder) or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby, PROVIDED, HOWEVER,
that this clause (c) shall not be deemed to require the consent of any
Holder with respect to changes in the references
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to "the Trustee" and concomitant changes in this Section 9.02 and
Section 10.06, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11(b) and 9.01(g).
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if that Act approves the substance
thereof.
The determination of the Trustee as to the series of Securities
the rights of which are to be affected pursuant to this Section 9.02 shall be
conclusive, and the Trustee in making that determination shall be protected in
relying on an Opinion of Counsel.
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article IX or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.01) shall be fully protected in relying on,
an Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture that adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES.
On the execution of any supplemental indenture under this Article
IX, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act.
SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article IX may, and
shall if required by the Trustee, bear a
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notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and executed by the Company
and (at the specific direction of the Company) authenticated and delivered by
the Trustee in exchange for Outstanding Securities of that series.
SECTION 9.07. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to Section 9.02, the Company shall transmit
to the Holders of Securities of all series affected thereby a notice setting
forth the substance of that supplemental indenture.
ARTICLE X
COVENANTS
SECTION 10.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series
of Securities that it will duly and punctually pay the principal of, premium, if
any, and interest on and any Additional Amounts with respect to the Securities
of that series in accordance with the terms of those Securities and this
Indenture.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for each
series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange or conversion and where notices and demands to or on
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The
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Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 10.03. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of, premium, if any, or interest on or any Additional Amounts with
respect to any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the entire
amount so becoming due until such sum shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of,
premium, if any, or interest on or any Additional Amounts with respect to any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
the entire amount so becoming due, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee
or the Company for each series of Securities to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section 10.03, that such Paying Agent will:
(a) comply with the provisions of the Trust Indenture Act and this Indenture
applicable to it as a Paying Agent and hold all sums held by it for the payment
of principal of or any premium or interest on or any Additional Amounts with
respect to the Securities of that series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to those Persons or otherwise
disposed of as herein provided; (b) give the Trustee notice of any default by
the Company (or any other obligor on the Securities) in the making of any
payment in respect of the Securities of that series; and (c) at any time during
the continuance of any default by the Company (or any other obligor on the
Securities of that series) in the making of any payment in respect of the
Securities of that series, on the written request of the Trustee, forthwith pay
to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series, and account for any funds disbursed.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
on the same trusts as those on which such sums were held by the Company or such
Paying Agent; and, on such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, or interest on or any
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Additional Amounts with respect to any Security of any series and remaining
unclaimed for two years after that principal, premium, if any, interest or
Additional Amounts, if any, has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of that Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 10.04. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 10.05. EXISTENCE.
Subject to Article VIII, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises and the existence,
rights (charter and statutory) and franchises of each Subsidiary; PROVIDED,
HOWEVER, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders of Securities of any series.
SECTION 10.06. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Section 10.05, or any covenant added for
the benefit of any series of Securities as contemplated by Section 3.01 (unless
otherwise specified pursuant to Section 3.01) if before or after the time for
such compliance the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by that omission (acting as one class) shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the
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Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 10.07. ADDITIONAL AMOUNTS.
If the Securities of a series expressly provide for the payment
of Additional Amounts, the Company will pay to the Holder of any Security of
that series Additional Amounts as expressly provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section 10.07 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section 10.07 and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment of
Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company shall furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
who are United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities and the Company will pay to such
Paying Agent the Additional Amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section 10.07.
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article XI.
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter period shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of that series to be
redeemed. In case of any redemption at the election of the Company of all the
Securities of any series, the Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter period shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date.
SECTION 11.03. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed,
the particular Securities of that series to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of that series not previously called for redemption, by
lot or pro rata or by such other method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or
any integral multiple thereof) of the principal amount of Securities of that
series of a denomination larger than the minimum authorized denomination for
Securities of that series.
If any Security selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion of
the Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities of any
series which have been converted during a selection of Securities of that series
to be redeemed shall be treated by the Trustee as Outstanding for the purpose of
such selection. In any case where more than one Security of the same series is
registered in the same name, the Trustee in its discretion may treat the
aggregate principal amount so registered as if it were represented by one
Security of that series.
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The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.04. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 15 nor more than 60 days prior to the Redemption
Date, to the Trustee and to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(d) that on the Redemption Date the Redemption Price will become
due and payable on each such Security to be redeemed and that (unless
the Company shall default in payment of the Redemption Price) interest
thereon will cease to accrue on and after said date,
(e) that the redemption is for a sinking fund, if that is the
case,
(f) the conversion price, the date on which the right to convert
the Securities to be redeemed will terminate and the place or places
where such Securities may be surrendered for conversion, and
(g) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request
received by the Trustee at least 25 days prior to the Redemption Date, by the
Trustee in the name and at the expense of the Company.
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SECTION 11.05. DEPOSIT OF REDEMPTION PRICE.
At or prior to 10:00 a.m. (Houston, Texas time) on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, and any Additional Amounts with respect to, all the
Securities or portions thereof which are to be redeemed on that date other than
any Securities called for redemption on that date which have been converted
prior to the date of such deposit.
If any Security called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 3.07) be paid to the Company on
Company Request or, if then held by the Company, shall be discharged from such
trust.
SECTION 11.06. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest and any Additional Amounts) such Securities shall cease to bear
interest or be entitled to any Additional Amounts. On surrender of any such
Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest and
any Additional Amounts to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest whose Maturity is on or prior to the Redemption Date
shall be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid on
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 11.07. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company maintained for that purpose
pursuant to Section 10.02 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series, of any authorized
denomination as requested by such Holder, in an aggregate principal
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amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE XII
SUBORDINATION OF SECURITIES
SECTION 12.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security,
by his acceptance thereof, likewise covenants and agrees, that, at all times and
in all respects, the indebtedness represented by the Securities and the payment
of the principal of, premium, if any, and interest on and any Additional Amounts
with respect to each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness. Obligations in respect of Senior Indebtedness will not be
deemed to have been paid in full unless the holders thereof shall have received
payment in full in cash or cash equivalents with respect thereto.
Each Holder of the Securities by its acceptance thereof
acknowledges and agrees that the subordination provisions included herein are,
and are intended to be, an inducement and a consideration to each holder of any
Senior Indebtedness, whether such Senior Indebtedness was created or acquired
before or after the issuance of Securities, to acquire and/or continue to hold
such Senior Indebtedness, and such holder of Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and/or
continuing to hold such Senior Indebtedness.
SECTION 12.02. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding, relative to the Company or to its creditors, as such, or to
a substantial part of its assets, or (b) any proceeding for the liquidation,
dissolution or other winding up of the Company, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy, or (c) any general
assignment for the benefit of creditors or any other marshaling of assets and
liabilities of the Company, then and in any such event the holders of Senior
Indebtedness shall be entitled to receive payment in full of all Obligations due
or to become due on or in respect of all Senior Indebtedness before the Holders
of the Securities are entitled to receive any payment or distribution of any
kind or character, whether in cash, property or securities, on account of
principal of, premium, if any, or interest on or any Additional Amounts with
respect to the Securities, and to that end the holders of Senior Indebtedness
shall be entitled to receive, for application to the payment thereof, any
payment or distribution of any kind or character, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of the
Securities, which may be payable or deliverable in respect of the Securities in
any such case,
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proceeding, dissolution, liquidation or other winding up or event. In
furtherance of the foregoing, but not by way of limitation thereof, in the event
of any case or proceeding described in clause (a) above in or as a result of
which the Company is excused from the obligation to pay all or any part of the
interest otherwise payable in respect of any Senior Indebtedness during the
period subsequent to the commencement of any such case or proceeding, all or
such part, as the case may be, of such interest shall be payable out of, and to
that extent shall diminish and be at the expense of, reorganization dividends or
other distributions in respect of the Securities.
In the event that, notwithstanding the foregoing provisions of
this Section 12.02, the Trustee or the Holder of any Security shall have
received any payment or distribution of any kind or character in respect of the
Securities, whether in cash, property or securities, including any such payment
or distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of the
Securities, before all Senior Indebtedness is paid in full, such payment or
distribution shall be held by the Trustee (if the Trustee has knowledge that
such payment or distribution is prohibited by this Section 12.02) or by such
Holder (in trust) for the holders of Senior Indebtedness, and shall be paid
forthwith over and delivered to, the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
To the extent any payment of or distribution in respect of Senior
Indebtedness (whether by or on behalf of the Company, as proceeds of security or
enforcement of any right of set off or otherwise) is declared to be fraudulent
or preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then
if such payment or distribution is recovered by, or paid over to, such receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person, the
Senior Indebtedness or part thereof originally intended to be satisfied shall be
deemed to be reinstated and outstanding as if such payment has not occurred.
For purposes of this Article XII only, (a) a "distribution" may
consist of cash, securities or other property, by set-off or otherwise and (b)
the words "cash, property or securities" shall not be deemed to include
securities of the Company as reorganized or readjusted or securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment, which securities are subordinated in right of payment to all
Senior Indebtedness which may at the time be outstanding to substantially the
same extent as, or to a greater extent than, the Securities are so subordinated
as provided in this Article XII. The consolidation of the Company with, or the
merger of the Company into, another Person or the liquidation or dissolution of
the Company following the conveyance or transfer of its properties and assets
substantially as an entirety to another Person on the terms and conditions set
forth in Article VIII shall not be deemed a dissolution, winding up,
liquidation, reorganization, general assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Section 12.02 if the
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Person formed by such consolidation or into which the Company is merged or which
acquires by conveyance or transfer such properties and assets substantially as
an entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article VIII.
SECTION 12.03. PRIOR PAYMENT TO SENIOR INDEBTEDNESS ON ACCELERATION OF
SECURITIES.
If any Securities are declared due and payable before their
Stated Maturity, the Company shall promptly notify all holders of Senior
Indebtedness of such event. In the event that any Securities are declared due
and payable before their Stated Maturity, then and in such event the holders of
Senior Indebtedness shall be entitled to receive payment in full of all
Obligations in respect of Senior Indebtedness before the Holders of the
Securities are entitled to receive any payment or other distribution (including
any payment which may be payable by reason of the payment of any other
indebtedness of the Company being subordinated to the payment of the Securities)
on account of the principal of, premium, if any, or interest on or any
Additional Amounts with respect to the Securities or on account of the purchase
or other acquisition of Securities, and on any such event the Holders of the
Securities shall, to the extent permitted by law, be prohibited for a period of
180 days thereafter from making any bankruptcy filing with respect to the
Company or from filing suit to enforce their rights under this Indenture
(PROVIDED, HOWEVER, that if the acceleration of Securities is rescinded or
annulled prior to the expiration of such 180-day period, such prohibition shall
terminate on such earlier date as the acceleration of such Securities is
rescinded or annulled), subject to the rights, if any, under this Article XII of
the holders, from time to time, of Senior Indebtedness to receive the cash,
property or securities receivable on the exercise of such rights.
In the event that, notwithstanding the foregoing, the Company
shall make any payment or distribution to the Trustee or the Holder of any
Security prohibited by the foregoing provisions of this Section 12.03, such
payment or distribution shall be held by the Trustee (if the Trustee has
knowledge that such payment or distribution is so prohibited) or by such Holder
(in trust) for the holders of Senior Indebtedness, and shall be paid forthwith
over and delivered (a) to the holders of Senior Indebtedness or their respective
Representatives as their respective interests may appear or (b) as a court of
competent jurisdiction shall direct, in each case, for application to the
payment of all Obligations with respect to Senior Indebtedness remaining unpaid
to the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness.
The provisions of this Section 12.03 shall not apply to any
payment with respect to which Section 12.02 would be applicable.
SECTION 12.04. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
The Company may not make any payment (whether by redemption,
purchase, retirement, defeasance or otherwise) to the Trustee or any Holder on
account of the principal of,
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premium, if any, or interest on or any Additional Amounts with respect to the
Securities and may not acquire from the Trustee or any Holder any Securities
(other than payments and other distributions made from any defeasance trust
created pursuant to Section 4.01 if the applicable deposit does not violate
Article IV or this Article XII) until all principal and other Obligations with
respect to the Senior Indebtedness of the Company have been paid in full if:
(a) a default in the payment of any principal of, premium, if
any, or interest on Designated Senior Indebtedness occurs; or
(b) a default, other than a payment default, on Designated Senior
Indebtedness occurs and is continuing that then permits holders of the
Designated Senior Indebtedness as to which such default relates to
accelerate its maturity and the Trustee receives a notice of the default
(a "Payment Blockage Notice") from a Person who is a Representative of
the holders of such Designated Senior Indebtedness, PROVIDED, that if
such Designated Senior Indebtedness is of the type referred to in clause
(b) of the definition thereof, the Payment Blockage Notice shall be
given by a Representative of the holders of at least 20% of such
Designated Senior Indebtedness. If the Trustee receives any such Payment
Blockage Notice, no subsequent Payment Blockage Notice shall be
effective for purposes of this Section 12.04 unless and until 360 days
shall have elapsed since the date of commencement of the payment
blockage period resulting from the immediately prior Payment Blockage
Notice. No nonpayment default in respect of any Designated Senior
Indebtedness that existed or was continuing on the date of delivery of
any Payment Blockage Notice to the Trustee shall be, or be made, the
basis for subsequent Payment Blockage Notices.
The Company shall resume payments on and distributions in respect
of the Securities and may acquire Securities on:
(a) in the case of a default referred to in subparagraph (a) of
the preceding paragraph, the date on which the default is cured or
waived, or
(b) in the case of a default referred to in subparagraph (b) of
the preceding paragraph, the earliest of (i) the date on which such
nonpayment default is cured or waived, (ii) the date the applicable
Payment Blockage Notice is retracted by written notice to the Trustee
from the Person who is a Representative of the holders of the relevant
Designated Senior Indebtedness and (iii) 179 days after the date on
which the applicable Payment Blockage Notice is received unless (A) any
of the events described in subparagraph (a) of the preceding paragraph
has occurred and is continuing or (B) a Default or Event of Default
under clause (f) or (g) of Section 5.01 has occurred,
if this Article XII otherwise permits the payment, distribution or acquisition
at the time of such payment or acquisition.
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In the event that, notwithstanding the foregoing, the Company
shall make any payment or distribution to the Trustee or the Holder of any
Security prohibited by the foregoing provisions of this Section 12.04, such
payment or distribution shall be held by the Trustee (if the Trustee has
knowledge that such payment or distribution is so prohibited) or by such Holder
(in trust) for the holders of Senior Indebtedness, and shall be paid forthwith
over and delivered (a) to the holders of Senior Indebtedness or their respective
Representatives as their respective interests may appear or (b) as a court of
competent jurisdiction shall direct, in each case for application to the payment
of all Obligations with respect to Senior Indebtedness remaining unpaid to the
extent necessary to pay such Obligations in full in accordance with their terms,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness.
The provisions of this Section 12.04 shall not apply to any
payment with respect to which Section 12.02 would be applicable.
SECTION 12.05. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article XII or elsewhere in this
Indenture or in any of the Securities shall prevent (a) the Company, at any time
except under the circumstances referred to in Section 12.02 or under the
conditions described in Section 12.03 or 12.04, from making payments at any time
of principal of, premium, if any, or interest on or any Additional Amounts with
respect to the Securities, or (b) the application by the Trustee of any money
deposited with it hereunder to the payment of or on account of the principal of,
premium, if any, or interest on or any Additional Amounts with respect to the
Securities if, at the time of such application by the Trustee, it did not have
knowledge within the meaning of Section 12.10 that such payment would have been
prohibited by the provisions of this Article XII.
SECTION 12.06. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Obligations in respect of
Senior Indebtedness, the Holders of the Securities shall be subrogated to the
extent of the payments or distributions made to the holders of Senior
Indebtedness pursuant to the provisions of this Article XII (equally and ratably
with the holders of all indebtedness of the Company which by its express terms
is subordinated to other indebtedness of the Company to substantially the same
extent as the Securities are subordinated and is entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness to receive
payments and distributions applicable to the Senior Indebtedness until the
principal of, premium, if any, and interest on and any Additional Amounts with
respect to the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article XII, and no payments over
pursuant to the provisions of this Article XII to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Indebtedness and the Holders
of the Securities, be deemed to be a payment or distribution by the Company to
or on account of the Senior Indebtedness.
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SECTION 12.07. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article XII are and are intended solely
for the purpose of defining the relative rights of the Holders of the Securities
on the one hand and the holders of Senior Indebtedness on the other hand.
Nothing contained in this Article XII or elsewhere in this Indenture or in the
Securities is intended to or shall: (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of, premium, if any, and
interest on and any Additional Amounts with respect to the Securities as and
when the same shall become due and payable in accordance with their terms; (b)
affect the relative rights against the Company or the Holders of the Securities
and creditors of the Company other than the holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law on default under this Indenture,
subject to the rights, if any, under this Article XII of the holders of Senior
Indebtedness to receive distributions otherwise payable or deliverable to the
Trustee or such Holder.
SECTION 12.08. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each holder of a Security by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XII and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 12.09. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the preceding
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Trustee or the Holders of
the Securities and without impairing or releasing the subordination provided in
this Article XII or the obligations hereunder of the Trustee or the Holders of
the Securities to the holders of Senior Indebtedness, do any one or more of the
following: (a) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness, or otherwise amend or
supplement in any manner Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (c) release any Person liable in any
manner for the collection of Senior Indebtedness; and (d) exercise or refrain
from exercising any rights against the Company and any other Person.
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SECTION 12.10. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities. Notwithstanding the provisions
of this Article XII or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts that would prohibit
the making of any payment to or by the Trustee in respect of the Securities,
unless and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any Representative therefor;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 6.01, shall be entitled in all respects to assume that
no such facts exist; PROVIDED, HOWEVER, that if the Trustee shall not have
received the notice provided for in this Section 12.10 at least two Business
Days prior to the date on which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the principal of,
premium, if any, or interest on or any Additional Amounts with respect to any
Security), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within two
Business Days prior to such date.
Subject to the provisions of Section 6.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a Representative
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a Representative therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article XII, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article XII, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
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SECTION 12.11. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
On any payment or distribution in respect of the Securities or
Senior Indebtedness referred to in this Article XII, the Trustee, subject to the
provisions of Section 6.01, and, so long as the provisions of this Article XII
have been brought to the attention of the court, tribunal, trustee or other
Person making the payment or distribution, the Holders of the Securities shall
be entitled to rely on any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XII.
SECTION 12.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall, absent gross negligence or wilful misconduct, mistakenly pay over or
distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which holders of Senior Indebtedness shall be
entitled by virtue of this Article XII or otherwise. With respect to the holders
of Senior Indebtedness, the Trustee undertakes to perform or to observe only
such of its covenants and obligations as are specifically set forth in this
Article XII, and no implied covenants or obligations with respect to the holders
of Senior Indebtedness shall be read into this Article XII against the Trustee.
SECTION 12.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article XII with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
Nothing in this Article XII shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.07.
SECTION 12.14. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article XII shall in such case (unless the context
otherwise requires) be construed as extending to and including such
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Paying Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article XII in addition to or in place of the
Trustee; PROVIDED, HOWEVER, that Section 12.13 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 12.15. CERTAIN CONVERSIONS DEEMED PAYMENT.
For the purposes of this Article XII only, (a) the issuance and
delivery of junior securities on conversion of Securities in accordance with
Article XIII shall not be deemed to constitute a payment or distribution on
account of the principal of, premium, if any, or interest on or any Additional
Amounts with respect to Securities or on account of the purchase or other
acquisition of Securities, and (b) the payment, issuance or delivery of cash,
property or securities (other than junior securities) on conversion of a
Security shall be deemed to constitute payment on account of the principal of
such Security. For the purposes of this Section 12.15, the term "junior
securities" means (a) shares of any class of capital stock of the Company and
(b) securities of the Company which are subordinated in right of payment to all
Senior Indebtedness which may be outstanding at the time of issuance or delivery
of such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article XII.
Nothing contained in this Article XII or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company, its creditors
other than holders of Senior Indebtedness and the Holders of the Securities, the
right, which is absolute and unconditional, of the Holder of any Security to
convert such Security in accordance with Article XIII.
SECTION 12.16. NO SUSPENSION OF REMEDIES.
Except as provided in Section 12.03, nothing contained in this
Article XII shall limit the right of the Trustee or the Holders of the
Securities of any series to take any action to accelerate the maturity of the
Securities of that series pursuant to the provisions described under Article V
and as set forth in this Indenture or to pursue any rights or remedies hereunder
or under applicable law, subject to the rights, if any, under this Article XII
of the holders, from time to time, of Senior Indebtedness to receive the cash,
property or securities receivable on the exercise of such rights or remedies.
ARTICLE XIII
CONVERSION OF SECURITIES
SECTION 13.01. CONVERSION PRIVILEGE AND CONVERSION PRICE.
Subject to and on compliance with the provisions of this Article
XIII, at the option of the Holder thereof, any Security of any series or any
portion of the principal amount thereof which equals $1,000 or any integral
multiple thereof may be converted at any time on or following the
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Convertibility Commencement Date for that Security at the principal amount
thereof, or of such portion thereof, into fully paid and nonassessable shares
(calculated as to each conversion to the nearest 1/100 of a share) of Common
Stock, at the conversion price for that Security, determined as hereinafter
provided, in effect at the time of conversion. Such conversion right shall
expire at the close of business on the Stated Maturity of the final payment of
principal of that Security. In case a Security or portion thereof is called for
redemption, such conversion right in respect of the Security or portion so
called shall expire at the close of business on the second business day
preceding the applicable Redemption Date, unless the Company defaults in making
the payment due on redemption.
The price at which shares of Common Stock shall be delivered on
conversion of any Security (herein called the "conversion price") shall be
initially the Initial Conversion Price per share of Common Stock which is fixed
for that Security by or pursuant to this Indenture. The conversion price shall
be adjusted in certain instances as provided in paragraphs (a), (b), (c), (d),
(e), (f) and (i) of Section 13.04.
SECTION 13.02. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any
Security of any series shall surrender that Security, duly endorsed or assigned
to the Company or in blank, at any office or agency of the Company maintained
pursuant to Section 10.02 for that series, accompanied by written notice to the
Company in the form provided in the Security (or such other notice as is
acceptable to the Company) at such office or agency that the Holder elects to
convert that Security or, if less than the entire principal amount thereof is to
be converted, the portion thereof to be converted. Securities surrendered for
conversion during the period from the opening of business on any Regular Record
Date for that Security next preceding any Interest Payment Date for that
Security to the close of business on that Interest Payment Date (except in the
case of Securities or portions thereof which have been called for redemption on
a Redemption Date, or which are repurchaseable on a Repurchase Date, occurring,
in either case, within such period) must be accompanied by payment in New York
Clearing House funds or other funds acceptable to the Company of an amount equal
to the interest payable on that Interest Payment Date on the principal amount of
Securities being surrendered for conversion. Except as provided in the
immediately preceding sentence and subject to the last paragraph of Section
3.07, no payment or adjustment shall be made on any conversion on account of any
interest accrued on the Securities surrendered for conversion or on account of
any dividends on the Common Stock issued on conversion.
Securities shall be deemed to have been converted immediately
prior to the close of business on the day of their surrender for conversion in
accordance with the foregoing provisions, and at such time the rights of the
Holders of those Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable on conversion of those Securities
shall be treated for all purposes as having become the record holder or holders
of such Common Stock as and after such time. As promptly as practicable on or
after the conversion date, the Company shall issue and shall deliver at such
office or agency a certificate or certificates for the number of full shares of
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Common Stock issuable on conversion, together with payment in lieu of any
fraction of a share, as provided in Section 13.03.
In the case of any Security of any series which is converted in
part only, on such conversion the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company, a
new Security or Securities of the same series and like tenor and of authorized
denominations in an aggregate principal amount equal to the unconverted portion
of the principal amount of such Security.
SECTION 13.03. FRACTIONS OF SHARES.
No fractional share of Common Stock shall be issued on conversion
of Securities of any series. If more than one Security of the same series shall
be surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable on conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities (or specified portions
thereof) so surrendered. Instead of any fractional share of Common Stock which
would otherwise be issuable on conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the Closing Price
(as hereinafter defined) at the close of business on the day of conversion (or,
if such day is not a Trading Day (as hereafter defined), on the Trading Day
immediately preceding such day).
SECTION 13.04. ADJUSTMENT OF CONVERSION PRICE.
(a) In case the Company shall pay or make a dividend or other
distribution on the Common Stock exclusively in Common Stock or shall pay or
make a dividend or other distribution on any other class of capital stock of the
Company which dividend or distribution includes Common Stock, each conversion
price in effect for the Securities of each series at the opening of business on
the day following the date fixed for the determination of stockholders entitled
to receive such dividend or other distribution shall be reduced by multiplying
that conversion price by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding at the close of business on the date fixed
for such determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or other
distribution, such reduction to become effective immediately after the opening
of business on the day following the date fixed for such determination. For the
purpose of this paragraph (a), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company. The
Company shall not pay any dividend or make any distribution on shares of Common
Stock held in the treasury of the Company.
(b) Subject to paragraph (g) of this Section 13.04, in case the
Company shall pay or make a dividend or other distribution on the Common Stock
consisting exclusively of, or shall otherwise issue to all holders of the Common
Stock, rights or warrants entitling the holders thereof to subscribe for or
purchase shares of Common Stock at a price per share less than the Current
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Market Price (determined as provided in paragraph (h) of this Section 13.04) on
the date fixed for the determination of stockholders entitled to receive such
rights or warrants, each conversion price in effect for the Securities of each
series at the opening of business on the day following the date fixed for such
determination shall be reduced by multiplying that conversion price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock which the aggregate of the offering
price of the total number of shares of Common Stock so offered for subscription
or purchase would purchase at such Current Market Price and the denominator
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares of
Common Stock so offered for subscription or purchase, such reduction to become
effective immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this paragraph (b), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company. The Company shall not issue any
rights or warrants in respect of shares of Common Stock held in the treasury of
the Company.
(c) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, each conversion
price in effect for the Securities of each series at the opening of business on
the day following the day on which such subdivision becomes effective shall be
proportionately reduced, and, conversely, in case outstanding shares of Common
Stock shall be combined into a smaller number of shares of Common Stock, each
conversion price in effect for the Securities of each series at the opening of
business on the day following the day on which such combination becomes
effective shall be proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of business on
the day following the day on which subdivision or combination becomes effective.
(d) Subject to the last sentence of this paragraph (d) and to
paragraph (g) of this Section 13.04, in case the Company shall, by dividend or
otherwise, distribute to all holders of the Common Stock evidences of its
indebtedness, shares of any class of its capital stock, cash or other assets
(including securities, but excluding any rights or warrants referred to in
paragraph (b) of this Section 13.04, excluding any dividend or distribution paid
exclusively in cash and excluding any dividend or distribution referred to in
paragraph (a) of this Section 13.04), each conversion price for the Securities
of each series shall be reduced by multiplying that conversion price as it was
in effect immediately prior to the close of business on the date fixed for the
determination of stockholders entitled to such distribution by a fraction of
which the numerator shall be the Current Market Price (determined as provided in
paragraph (h) of this Section 13.04) on such date less the fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution) on such date of the portion of the
evidences of indebtedness, shares of capital stock, cash and other assets to be
distributed applicable to one share of Common Stock and the denominator shall be
such Current Market Price, such reduction to become effective immediately prior
to the opening of business on the day following such date. If the Board of
Directors determines the fair market value of any distribution for purposes of
this paragraph (d) by reference to the actual or when-issued trading market for
any securities comprising part or all of such distribution, it must
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in doing so consider the prices in such market over the same period used in
computing the Current Market Price pursuant to paragraph (h) of this Section
13.04, to the extent possible. For purposes of this paragraph (d), any dividend
or distribution that includes shares of Common Stock, rights or warrants to
subscribe for or purchase shares of Common Stock or securities convertible into
or exchangeable for shares of Common Stock shall be deemed to be (i) a dividend
or distribution of the evidences of indebtedness, cash, assets or shares of
capital stock other than such shares of Common Stock, such rights or warrants or
such convertible or exchangeable securities (making any conversion price
reduction required by this paragraph (d)) immediately followed by (ii) in the
case of such shares of Common Stock or such rights or warrants, a dividend or
distribution thereof (making any further conversion price reduction required by
paragraphs (a) and (b) of this Section 13.04, except any shares of Common Stock
included in such dividend or distribution shall not be deemed "outstanding at
the close of business on the date fixed for such determination" within the
meaning of paragraph (a) of this Section 13.04), or (iii) in the case of such
convertible or exchangeable securities, a dividend or distribution of the number
of shares of Common Stock as would then be issuable on the conversion or
exchange thereof, whether or not the conversion or exchange of such securities
is subject to any conditions (making any further conversion price reduction
required by paragraph (a) of this Section 13.04, except the shares deemed to
constitute such dividend or distribution shall not be deemed "outstanding at the
close of business on the date fixed for such determination" within the meaning
of paragraph (a) of this Section 13.04).
(e) In case the Company shall, by dividend or otherwise, at any
time distribute to all holders of the Common Stock cash (excluding any cash that
is distributed as part of a distribution referred to in paragraph (d) of this
Section 13.04 or in connection with a transaction to which Section 13.11
applies) in an aggregate amount that, together with (i) the aggregate amount of
any other distributions to all holders of the Common Stock made exclusively in
cash within the 12 months preceding the date fixed for the determination of
stockholders entitled to such distribution and in respect of which no conversion
price adjustment pursuant to this paragraph (e) has been made previously and
(ii) the aggregate of any cash plus the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and described in a
Board Resolution) as of such date of determination of any other consideration
payable in respect of any tender offer by the Company or a Subsidiary for all or
any portion of the Common Stock consummated within the 12 months preceding such
date of determination and in respect of which no conversion price adjustment
pursuant to paragraph (f) of this Section 13.04 has been made previously,
exceeds the greater of (A) 12.5% of the product of the Current Market Price
(determined as provided in paragraph (h) of this Section) on such date of
determination times the number of shares of Common Stock outstanding on such
date or (B) the Company's consolidated retained earnings on the date fixed for
determining the stockholders entitled to such distribution (determined without
giving effect to such distribution), each conversion price for the Securities of
each series shall be reduced by multiplying that conversion price as it was in
effect immediately prior to the close of business on such date of determination
by a fraction of which the numerator shall be the Current Market Price
(determined as provided in paragraph (h) of this Section 13.04) on such date
less the amount of such cash previously distributed or to be distributed at such
time applicable to one share of Common Stock and
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the denominator shall be such Current Market Price, such reduction to become
effective immediately prior to the opening of business on the day following such
date.
(f) In case a tender offer made by the Company or any Subsidiary
for all or any portion of the Common Stock shall be consummated and such tender
offer shall involve an aggregate consideration having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution) as of the last time (the "Expiration Time")
that tenders may be made pursuant to such tender offer (as it shall have been
amended) that, together with (i) the aggregate of the cash plus the fair market
value (as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) as of the Expiration Time of the
other consideration paid in respect of any other tender offer by the Company or
a Subsidiary for all or any portion of the Common Stock consummated within the
12 months preceding the Expiration Time and in respect of which no conversion
price adjustment pursuant to this paragraph (f) has been made previously and
(ii) the aggregate amount of any distributions to all holders of the Common
Stock made exclusively in cash within the 12 months preceding the Expiration
Time and in respect of which no conversion price adjustment pursuant to
paragraph (e) of this Section 13.04 has been made previously, exceeds the
greater of (A) 12.5% of the product of the Current Market Price (determined as
provided in paragraph (h) of this Section 13.04) immediately prior to the
Expiration Time times the number of shares of Common Stock outstanding
(including any tendered shares) at the Expiration Time or (B) the Company's
consolidated retained earnings as of the Expiration Time (determined without
giving effect to the purchase of tendered shares), each conversion price for the
Securities of each series shall be reduced by multiplying that conversion price
as it was in effect immediately prior to the Expiration Time by a fraction of
which the numerator shall be (1) the product of the Current Market Price
(determined as provided in paragraph (h) of this Section 13.04) immediately
prior to the Expiration Time times the number of shares of Common Stock
outstanding (including any tendered shares at the Expiration Time) minus (2) the
fair market value (determined as aforesaid) of the aggregate consideration
payable to stockholders on consummation of such tender offer and the denominator
shall be the product of (1) such Current Market Price times (2) such number of
outstanding shares at the Expiration Time minus the number of shares accepted
for payment in such tender offer (the "Purchased Shares"), such reduction to
become effective immediately prior to the opening of business on the day
following the Expiration Time; PROVIDED, that if the number of Purchased Shares
or the aggregate consideration payable therefor has not been finally determined
by such opening of business, the adjustment required by this paragraph (f)
shall, pending such final determination, be made based on the preliminarily
announced results of such tender offer, and, after such final determination
shall have been made, the adjustment required by this paragraph (f) shall be
made based on the number of Purchased Shares and the aggregate consideration
payable therefor as so finally determined.
(g) The reclassification of Common Stock into securities that
include securities other than Common Stock (other than any reclassification on a
consolidation or merger to which Section 13.11 applies) shall be deemed to
involve (i) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
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be deemed to be "the date fixed for the determination of stockholders entitled
to such distribution" within the meaning of paragraph (d) of this Section
13.04), and (ii) a subdivision or combination, as the case may be, of the number
of shares of Common Stock outstanding immediately prior to such reclassification
into the number of shares of Common Stock outstanding immediately thereafter
(and the effective date of such reclassification shall be deemed to be "the day
on which such subdivision becomes effective" or "the day on which such
combination becomes effective", as the case may be, and "the day on which such
subdivision or combination becomes effective" within the meaning of paragraph
(c) of this Section 13.04).
Rights or warrants issued by the Company to all holders of the
Common Stock entitling the holders thereof to subscribe for or purchase shares
of Common Stock (either initially or under certain circumstances), which rights
or warrants (i) are deemed to be transferred with such shares of Common Stock,
(ii) are not exercisable and (iii) are also issued in respect of future
issuances of Common Stock, in each case in clauses (i) through (iii) until the
occurrence of a specified event or events ("Trigger Event"), shall for purposes
of this Section 13.04 not be deemed issued until the occurrence of the earliest
Trigger Event. If any such rights or warrants, including any such existing
rights or warrants distributed prior to the date of this Indenture, are subject
to subsequent events, on the occurrence of each of which such rights or warrants
shall become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the occurrence of each such event shall be
deemed to be such date of issuance and record date with respect to new rights or
warrants (and a termination or expiration of the existing rights or warrants
without exercise by the holder thereof). In addition, in the event of any
distribution (or deemed distribution) of such rights or warrants, or any Trigger
Event with respect thereto, that was counted for purposes of calculating a
distribution amount for which an adjustment to any conversion price under this
Section 13.04 was made, (i) in the case of any such rights or warrants that
shall all have been redeemed or repurchased without exercise by any holders
thereof, that conversion price shall be readjusted on such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case may
be, as though it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder or holders of Common Stock with respect to
such rights or warrants (assuming such holder had retained such rights or
warrants), made to all holders of Common Stock as of the date of such redemption
or repurchase, and (ii) in the case of such rights or warrants that shall have
expired or been terminated without exercise by any holders thereof, that
conversion price shall be readjusted as if such rights and warrants had not been
issued.
Notwithstanding any other provision of this Section 13.04 to the
contrary, rights, warrants, evidences of indebtedness, other securities, cash or
other assets (including, without limitation, any rights distributed pursuant to
any stockholder rights plan) shall be deemed not to have been distributed for
purposes of this Section 13.04 if the Company makes proper provision so that
each holder of Securities of each series who converts a Security (or any portion
thereof) of that series after the date fixed for determination of stockholders
entitled to receive such distribution shall be entitled to receive on such
conversion, in addition to the shares of Common Stock issuable on such
conversion, the amount and kind of such distributions which that holder would
have been entitled
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to receive if such holder had, immediately prior to such determination date,
converted that Security into Common Stock.
(h) For the purpose of any computation under this paragraph (h)
and paragraphs (b), (d) and (e) of this Section 13.04, the current market price
per share of Common Stock (the "Current Market Price") on any date shall be
deemed to be the average of the daily Closing Prices for the five consecutive
Trading Days selected by the Company commencing not more than 20 Trading Days
before, and ending not later than, the date in question; PROVIDED, HOWEVER, that
(i) if the "ex" date for any event (other than the issuance or distribution
requiring such computation) that requires an adjustment to any conversion price
pursuant to paragraph (a), (b), (c), (d), (e) or (f) of this Section 13.04
occurs on or after the 20th Trading Day prior to the date in question and prior
to the "ex" date for the issuance or distribution requiring such computation,
the Closing Price for each Trading Day prior to the "ex" date for such other
event shall be adjusted by multiplying such Closing Price by the same fraction
by which that conversion price is so required to be adjusted as a result of such
other event, (ii) if the "ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment to the
conversion price pursuant to paragraph (a), (b), (c), (d), (e) or (f) of this
Section 13.04 occurs on or after the "ex" date for the issuance or distribution
requiring such computation and on or prior to the date in question, the Closing
Price for each Trading Day on and after the "ex" date for such other event shall
be adjusted by multiplying such Closing Price by the reciprocal of the fraction
by which that conversion price is so required to be adjusted as a result of such
other event, and (iii) if the "ex" date for the issuance or distribution
requiring such computation is on or prior to the date in question, after taking
into account any adjustment required pursuant to clause (ii) of this proviso,
the Closing Price for each Trading Day on or after such "ex" date shall be
adjusted by adding thereto the amount of any cash and the fair market value on
the date in question (as determined by the Board of Directors in a manner
consistent with any determination of such value for purposes of paragraph (d) or
(e) of this Section 13.04, whose determination shall be conclusive and described
in a Board Resolution) of the evidences of indebtedness, shares of capital stock
or assets being distributed applicable to one share of Common Stock as of the
close of business on the day before such "ex" date. For the purpose of any
computation under paragraph (f) of this Section 13.04, the Current Market Price
on any date shall be deemed to be the average of the daily Closing Prices for
the five consecutive Trading Days selected by the Company commencing on or after
the latest (the "Commencement Date") of (i) the date 20 Trading Days before the
date in question, (ii) the date of commencement of the tender offer requiring
such computation and (iii) the date of the last amendment, if any, of such
tender offer involving a change in the maximum number of shares for which
tenders are sought or a change in the consideration offered, and ending not
later than the Expiration Time of such tender offer; PROVIDED, HOWEVER, that if
the "ex" date for any event (other than the tender offer requiring such
computation) that requires an adjustment to any conversion price pursuant to
paragraph (a), (b), (c), (d), (e) or (f) of this Section 13.04 occurs on or
after the Commencement Date and prior to the Expiration Time for the tender
offer requiring such computation, the Closing Price for each Trading Day prior
to the "ex" date for such other event shall be adjusted by multiplying such
Closing Price by the same fraction by which the conversion price is so required
to be adjusted as a result of such other event. The closing price for any
Trading Day (the "Closing Price") shall be the last reported
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sales price regular way or, in case no such reported sale takes place on such
day, the average of the reported closing bid and asked prices regular way, in
either case on the New York Stock Exchange or, if the Common Stock is not listed
or admitted to trading on such exchange, on the principal national securities
exchange on which the Common Stock is listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, on the Nasdaq
National Market or, if the Common Stock is not listed or admitted to trading on
any national securities exchange or quoted on the Nasdaq National Market, the
average of the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from time to time
by the Company for that purpose. For purposes of this paragraph, the term
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and Friday, other
than any day on which securities are generally not traded on the applicable
securities exchange or in the applicable securities market and the term "`ex'
date," (i) when used with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way on the relevant exchange
or in the relevant market from which the Closing Prices were obtained without
the right to receive such issuance or distribution, (ii) when used with respect
to any subdivision or combination of shares of Common Stock, means the first
date on which the Common Stock trades regular way on such exchange or in such
market after the time at which such subdivision or combination becomes effective
and (iii) when used with respect to any tender offer means the first date on
which the Common Stock trades regular way on such exchange or in such market
after the last time that tenders may be made pursuant to such tender offer (as
it shall have been amended).
(i) The Company may make such reductions in any conversion price
for any Security, in addition to those required by paragraphs (a), (b), (c),
(d), (e) and (f) of this Section 13.04, as it considers to be advisable (as
evidenced by a Board Resolution) in order that any event treated for federal
income tax purposes as a dividend of stock or stock rights shall not be taxable
to the recipients or, if that is not possible, to diminish any income taxes that
are otherwise payable because of such event.
(j) No adjustment in any conversion price for any Security shall
be required unless such adjustment (plus any other adjustments not previously
made by reason of this paragraph (j)) would require an increase or decrease of
at least 1% in that conversion price; PROVIDED, HOWEVER, that any adjustments
which by reason of this paragraph (j) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment of that
conversion price.
(k) Notwithstanding any other provision of this Section 13.04, no
adjustment to any conversion price for any Security shall reduce that conversion
price below the then par value per share of the Common Stock, and any such
purported adjustment shall instead reduce that conversion price to that par
value. The Company hereby covenants not to take any action to increase the par
value per share of the Common Stock.
SECTION 13.05. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever any conversion price is adjusted as herein provided:
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(a) the Company shall compute the adjusted conversion price in
accordance with Section 13.04 and shall prepare an Officers' Certificate
signed by the Treasurer of the Company setting forth the adjusted
conversion price and showing in reasonable detail the facts on which
such adjustment is based, and such certificate shall forthwith be filed
(with a copy to the Trustee) at each office or agency maintained
pursuant to Section 10.02 for the purpose of conversion of the
Securities to which the adjusted conversion price applies; and
(b) a notice stating that the conversion price has been adjusted
and setting forth the adjusted conversion price shall forthwith be
prepared, and as soon as practicable after it is prepared, such notice
shall be mailed by the Company to all Holders of Securities to which the
adjusted conversion price applies at their last addresses as they shall
appear in the Security Register.
SECTION 13.06. NOTICE OF CERTAIN CORPORATE ACTION.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on the Common Stock payable (i) otherwise than exclusively
in cash or (ii) exclusively in cash in an amount that would require any
conversion price adjustment pursuant to paragraph (e) of Section 13.04;
or
(b) the Company shall authorize the granting to the holders of
the Common Stock of rights or warrants to subscribe for or purchase any
shares of capital stock of any class or of any other rights (excluding
shares of capital stock or options for capital stock issued pursuant to
a benefit plan for employees, officers or directors of the Company); or
(c) of any reclassification of the Common Stock (other than a
subdivision or combination of the outstanding shares of Common Stock),
or of any consolidation, merger or share exchange to which the Company
is a party and for which approval of any stockholders of the Company is
required, or of the sale or transfer of all or substantially all the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) the Company or any Subsidiary shall commence a tender offer
for all or a portion of the outstanding shares of Common Stock (or shall
amend any such tender offer to change the maximum number of shares being
sought or the amount or type of consideration being offered therefor);
then the Company shall cause to be filed at each office or agency maintained
pursuant to Section 10.02, and shall cause to be mailed to all Holders at their
last addresses as they shall appear in the
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Security Register, at least 21 days (or 11 days in any case specified in clause
(a), (b) or (e) above) prior to the applicable record, effective or expiration
date hereinafter specified, a notice stating (i) the date on which a record is
to be taken for the purpose of such dividend, distribution or granting of rights
or warrants, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record who will be entitled to such dividend,
distribution, rights or warrants are to be determined, (ii) the date on which
such reclassification, consolidation, merger, share exchange, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable on such reclassification, consolidation, merger, share
exchange, sale, transfer, dissolution, liquidation or winding up, or (iii) the
date on which such tender offer commenced, the date on which such tender offer
is scheduled to expire unless extended, the consideration offered and the other
material terms thereof (or the material terms of any amendment thereto). Neither
the failure to give any such notice nor any defect therein shall affect the
legality or validity of any action described in clauses (a) through (e) of this
Section 13.06.
SECTION 13.07. COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times reserve and keep available, free
from preemptive and other rights, out of the authorized but unissued Common
Stock or out of the Common Stock held in the treasury of the Company, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock then issuable on the conversion of all outstanding Securities.
Shares of Common Stock issuable on conversion of outstanding Securities shall be
issued out of the Common Stock held in the treasury of the Company to the extent
available.
SECTION 13.08. TAXES ON CONVERSIONS.
The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax that may be payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that of the Holder of
the Security or Securities to be converted, and no such issue or delivery shall
be made unless and until the Person requesting such issue has paid to the
Company the amount of any such tax, or has established to the satisfaction of
the Company that such tax has been paid.
SECTION 13.09. COVENANT AS TO COMMON STOCK.
The Company covenants that all shares of Common Stock which may
be issued on conversion of Securities will on issue be fully paid and
nonassessable and, except as provided in Section 13.08, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
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SECTION 13.10. CANCELLATION OF CONVERTED SECURITIES.
All Securities delivered for conversion shall be delivered to the
Trustee to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 3.09.
SECTION 13.11. PROVISIONS OF CONSOLIDATION, MERGER OR SALE OF ASSETS.
In case of any consolidation of the Company with, or merger of
the Company into, any other Person, any merger of another Person into the
Company (other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock) or
any sale or transfer of all or substantially all the assets of the Company
(other than to a wholly-owned Subsidiary), the Person formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, shall execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security then Outstanding shall have
the right thereafter, during the period such Security shall be convertible as
specified in or pursuant to this Indenture, to convert such Security only into
the kind and amount of securities, cash and other property, if any, receivable
on such consolidation, merger, sale or transfer by a holder of the number of
shares of Common Stock into which such Security might have been converted
immediately prior to such consolidation, merger, sale or transfer, assuming such
holder of Common Stock (i) is not a Person with which the Company consolidated
or into which the Company merged or which merged into the Company or to which
such sale or transfer was made, as the case may be (a "Constituent Person"), or
an Affiliate of a Constituent Person and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable on such consolidation, merger, sale or transfer (provided
that if the kind or amount of securities, cash and other property receivable on
such consolidation, merger, sale or transfer is not the same for each share of
Common Stock held immediately prior to such consolidation, merger, sale or
transfer by other than a Constituent Person or an Affiliate thereof and in
respect of which such rights of election shall not have been exercised
("nonelecting share"), then for the purpose of this Section 13.11 the kind and
amount of securities, cash and other property receivable on such consolidation,
merger, sale or transfer by each nonelecting share shall be deemed to be the
kind and amount so receivable per share by a plurality of the nonelecting
shares). Such supplemental indenture shall provide for adjustments which, for
events subsequent to the effective date of such supplemental indenture, shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article XIII. The above provisions of this Section 13.11 shall similarly
apply to successive consolidations, mergers, sales or transfers.
SECTION 13.12. TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under
this Article XIII should be made, how it should be made or what such adjustment
should be, but may accept as conclusive evidence of the correctness of any such
adjustment, and shall be protected in relying on, the Officers' Certificate with
respect thereto which the Company is obligated to file with the Trustee pursuant
to Section 13.05. The Trustee makes no representation as to the validity or
value of any
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securities or assets issued on conversion of Securities, and the Trustee shall
not be responsible for the Company's failure to comply with any provisions of
this Article XIII.
The Trustee shall not be under any responsibility to determine
the correctness of any provisions contained in any supplemental indenture
executed pursuant to Section 13.11, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying on, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 1.02 in connection with that supplemental indenture.
ARTICLE XIV
RIGHT TO REQUIRE REPURCHASE
SECTION 14.01. RIGHT TO REQUIRE REPURCHASE.
In the event that there shall occur a Repurchase Event (as
defined in Section 14.06), then each Holder of each then Outstanding Security
shall have the right, at such Holder's option, to require the Company to
purchase, and on the exercise of such right, the Company shall, subject to the
provisions of Section 12.03, purchase, all or any part of such Holder's then
Outstanding Securities on the date (the "Repurchase Date") that is 30 days after
the date the Company gives notice of the Repurchase Event as contemplated in
Section 14.02(a) at a price (the "Repurchase Price") equal to 100% of the
principal amount thereof, together with accrued and unpaid interest to the
Repurchase Date.
SECTION 14.02. NOTICE; METHOD OF EXERCISING REPURCHASE RIGHT.
(a) On or before the 15th day after the occurrence of a
Repurchase Event, the Company, or at the request of the Company received by the
Trustee at least 40 days prior to the Repurchase Date, the Trustee (in the name
and at the expense of the Company), shall give notice of the occurrence of the
Repurchase Event and of the repurchase right set forth herein arising as a
result thereof by first-class mail, postage prepaid, to the Trustee and to each
Holder of the Securities that were Outstanding when the Repurchase Event
occurred at such Holder's address appearing in the Security Register. The
Company shall also deliver a copy of such notice of a repurchase right to the
Trustee.
Each notice of a repurchase right shall state:
(i) the event constituting the Repurchase Event and the date
thereof,
(ii) the Repurchase Date,
(iii) the date by which the repurchase right must be exercised,
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(iv) the Repurchase Price and
(v) the instructions a Holder must follow to exercise a
repurchase right.
No failure of the Company to give the foregoing notice shall
limit any Holder's right to exercise a repurchase right. The Trustee shall have
no affirmative obligation to determine if there shall have occurred a Repurchase
Event.
(b) To exercise a repurchase right, a Holder shall deliver to the
Company (or an agent designated by the Company for such purpose in the notice
referred to in (a) above) and to the Trustee on or before the close of business
on the Repurchase Date (i) written notice of the Holder's exercise of such
right, which notice shall set forth the name of the Holder, the principal amount
of the Security or Securities (or portion of a Security) to be repurchased and a
statement that an election to exercise the repurchased right is being made
thereby, and, together with the written notice to the Trustee, (ii) the Security
or Securities with respect to which the repurchase right is being exercised,
duly endorsed for transfer to the Company. Such written notice shall be
irrevocable.
In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall on the Repurchase Date pay or cause to
be paid in cash to the Holder thereof the Repurchase Price of the Security or
Securities as to which the repurchase right has been exercised. In the event
that a repurchase right is exercised with respect to less than the entire
principal amount of a surrendered Security of any series, the Company shall
execute and deliver to the Trustee and the Trustee shall authenticate for
issuance in the name of the Holder a new Security or Securities of that series
in the aggregate principal amount of the unrepurchased portion of such
surrendered security.
SECTION 14.03. DEPOSIT OF REPURCHASE PRICE.
On or prior to the Repurchase Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03) an
amount of money sufficient to pay the Repurchase Price of the Securities which
are to be repaid on the Repurchase Date.
SECTION 14.04. SECURITIES NOT REPURCHASED ON REPURCHASE DATE.
If the Repurchase Price of any Security surrendered for
repurchase shall not be paid on the Repurchase Date therefor, the principal
shall, until paid, bear interest to the extent permitted by applicable law from
that Repurchase Date at the rate per annum borne by that Security.
SECTION 14.05. SECURITIES REPURCHASED IN PART.
Any Security of any series which is to be repurchased only in
part shall be surrendered at any office or agency of the Company designated for
that purpose pursuant to Section
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10.02 (with, if the Company or the Trustee so requires, due endorsement by, or
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of that Security without service charge, a new Security or
Securities of that series and of like tenor and any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and in
exchange for the unrepurchased portion of the principal of the Security so
surrendered.
SECTION 14.06. CERTAIN DEFINITIONS.
For purposes of this Article:
(a) With respect to any Security, a "Repurchase Event" shall have
occurred on the occurrence of a Change in Control or a Termination of
Trading after the date that Security (or its earliest Predecessor
Security) is issued and on or prior to the Stated Maturity of the final
payment of principal of that Security.
(b) A "Change in Control" shall occur when:
(i) all or substantially all the assets of the Company or of the
Company and its subsidiaries, taken as a whole, are sold in one
transaction or any series of related transactions as an entirety to any
Person or related group of Persons;
(ii) there shall be consummated any consolidation or merger of
the Company (A) in which the Company is not the continuing or surviving
corporation (other than a consolidation or merger with a wholly owned
subsidiary of the Company in which all shares of Common Stock
outstanding immediately prior to the effectiveness thereof are changed
into or exchanged for the same consideration) or (B) pursuant to which
the Common Stock would be converted into cash, securities or other
property, in each case, other than a consolidation or merger of the
Company in which the holders of the Common Stock immediately prior to
the consolidation or merger have, directly or indirectly, at least a
majority of the total voting power of all classes of capital stock
entitled to vote generally in the election of directors of the
continuing or surviving corporation immediately after such consolidation
or merger in substantially the same proportion as their ownership of
Common Stock immediately before such transaction;
(iii) any person, or any persons acting together which would
constitute a "group" for purposes of Section 13(d) of the Exchange Act
(a "Group"), together with any Affiliates thereof, shall beneficially
own (as defined in Rule 13d-3 under the Exchange Act) at least 50% of
the total voting power of all classes of capital stock of the Company
entitled to vote generally in the election of directors of the Company;
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(iv) at any time during any consecutive two-year period,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election
by such Board of Directors or whose nomination for election by the
stockholders of the Company was approved by a vote of 66 % of the
directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company then in office; or
(v) the Company is liquidated or dissolved or adopts a plan of
liquidation or dissolution.
(c) A "Termination of Trading" shall occur if the Common Stock
(or other common stock into which the Securities are then convertible) is
neither listed for trading on a U.S. national securities exchange nor approved
for trading on an established automated over-the-counter trading market in the
United States.
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any or all series may be
called at any time and from time to time pursuant to this Article XV to make,
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 15.02. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 15.01, to be held
at such time and at such place in Houston, Texas, or in any other location, as
the Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 1.06, not less than 20 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any series, shall have requested the Trustee for that
series to call a meeting of the Holders of Securities of that series for any
purpose specified in Section 15.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first publication of the notice of that meeting
within 30 days after receipt of such request or shall not
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thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of that series in the amount above
specified, as the case may be, may determine the time and the place in Houston,
Texas, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in Subsection (a) of this Section 15.02.
SECTION 15.03. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (a) a Holder of one or more Outstanding Securities
of that series or (b) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of that series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 15.04. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of that series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of that series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 15.05(d), notice of
the reconvening of any adjourned meeting shall be given as provided in Section
15.02(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly that
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of that series shall constitute a quorum.
Except as limited by the proviso to Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series; PROVIDED, HOWEVER, that, except as limited by the proviso to Section
9.02, any resolution with respect to any request, demand, authorization,
direction, notice, consent or waiver which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage that is less
than a majority in aggregate principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in aggregate principal amount of the Outstanding
Securities of that series.
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Except as limited by the proviso to Section 9.02, any resolution
passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section 15.04 shall be binding on all the
Holders of Securities of that series, whether or not present or represented at
the meeting.
SECTION 15.05. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) The holding of Securities shall be proved in the manner
specified in Section 1.04 and the appointment of any proxy shall be proved in
the manner specified in Section 1.04 or by having the signature of the Person
executing the proxy witnessed or guaranteed by any trust company, bank or banker
deemed by the Trustee to be satisfactory. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 15.02(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series represented at the meeting.
(c) At any meeting each Holder of a Security of each series
represented at the meeting and each proxy shall be entitled to one vote for each
$1,000 principal amount of the Outstanding Securities of that series held or
represented by him; PROVIDED, HOWEVER, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of a
series represented at the meeting or as a proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 15.02 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of all series represented at the meeting;
and the meeting may be held as so adjourned without further notice.
SECTION 15.06. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote on any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of that series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of that series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
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duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 15.02 and, if
applicable, Section 15.04. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
-----------------------------
This Indenture may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
INNOVATIVE VALVE TECHNOLOGIES, INC.
By___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
Attest:
____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Financial Officer, Senior Vice
President - Corporate Development,
Treasurer and Secretary
[__________________________________]
as Trustee
By_________________________________
Attest:
____________________________________
Name:
Title:
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STATE OF TEXAS )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
On the ___ day of ___________ 1998, before me personally came ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
President and Chief Executive Officer of Innovative Valve Technologies, Inc.,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
-------------------------------
Notary Public
STATE OF ___________ )
) ss.:
COUNTY OF _________ )
On the __ day of _______, 1998, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is a ________________ of [__________________________________] a national
banking association, described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
---------------------------------
Notary Public
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TABLE OF CONTENTS
PAGE
ARTICLE I Definitions and Other Provisions................................1
SECTION 1.01. Definitions.....................................................1
SECTION 1.02. Compliance Certificates and Opinions............................9
SECTION 1.03. Form of Documents Delivered to Trustee..........................9
SECTION 1.04. Acts of Holders; Record Dates..................................10
SECTION 1.05. Notices, etc., to Trustee and Company..........................11
SECTION 1.06. Notice to Holders; Waiver......................................11
SECTION 1.07. Conflict With Trust Indenture Act..............................12
SECTION 1.08. Effect of Headings and Table of Contents.......................12
SECTION 1.09. Successors and Assigns.........................................12
SECTION 1.10. Separability Clause............................................12
SECTION 1.11. Benefits of Indenture..........................................13
SECTION 1.12. GOVERNING LAW..................................................13
SECTION 1.13. Legal Holidays.................................................13
SECTION 1.14. No Security Interest Created...................................13
SECTION 1.15. Limitation on Individual Liability.............................13
ARTICLE II Security Forms.................................................14
SECTION 2.01. Forms Generally................................................14
SECTION 2.02. Form of Trustee's Certificate of Authentification..............14
ARTICLE III The Securities.................................................15
SECTION 3.01. Amount Unlimited; Issuable in Series...........................15
SECTION 3.02. Denominations..................................................17
SECTION 3.03. Execution, Authentication, Delivery and Dating.................18
SECTION 3.04. Temporary Securities...........................................19
SECTION 3.05. Registration, Registration of Transfer and Exchange............20
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities...............21
SECTION 3.07. Payment of Interest; Interest Rights Preserved.................22
SECTION 3.08. Persons Deemed Owners..........................................23
SECTION 3.09. Cancellation...................................................23
SECTION 3.10. Computation of Interest........................................24
ARTICLE IV Satisfaction and Discharge.....................................24
SECTION 4.01. Satisfaction and Discharge of Indenture........................24
SECTION 4.02. Application of Trust Money.....................................25
SECTION 4.03. Reinstatement..................................................26
ARTICLE V Remedies.......................................................26
SECTION 5.01. Events of Default..............................................26
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.............28
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SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee........................................................30
SECTION 5.04. Trustee May File Proofs of Claim...............................30
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities....31
SECTION 5.06. Application of Money Collected.................................31
SECTION 5.07. Limitation on Suits............................................32
SECTION 5.08. Unconditional Right of Holders To Receive Principal, Premium,
Interest and To Convert......................................................33
SECTION 5.09. Restoration of Rights and Remedies.............................33
SECTION 5.10. Rights and Remedies Cumulative.................................33
SECTION 5.11. Delay or Omission Not Waiver...................................33
SECTION 5.12. Control by Holders.............................................34
SECTION 5.13. Waiver of Past Defaults........................................34
SECTION 5.14. Undertaking for Costs..........................................35
ARTICLE VI The Trustee....................................................35
SECTION 6.01. Certain Duties and Responsibilities............................35
SECTION 6.02. Notice of Defaults.............................................36
SECTION 6.03. Certain Rights of Trustee......................................36
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.........38
SECTION 6.05. May Hold Securities............................................38
SECTION 6.06. Money Held in Trust............................................38
SECTION 6.07. Compensation and Reimbursement.................................38
SECTION 6.08. Disqualification; Conflicting Interests........................39
SECTION 6.09. Corporate Trustee Required; Eligibility........................40
SECTION 6.10. Resignation and Removal; Appointment of Successor..............40
SECTION 6.11. Acceptance of Appointment by Successor.........................42
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business.......................................................43
SECTION 6.13. Preferential Collection of Claims Against Company..............43
SECTION 6.14. Appointment of Authenticating Agent............................43
ARTICLE VII Holders' Lists and Reports by Trustee and Company..............46
SECTION 7.01. Company To Furnish Trustee Names and Addresses of
Holders........................................................46
SECTION 7.02. Preservation of Information; Communication to Holders..........46
SECTION 7.03. Reports by Trustee.............................................46
SECTION 7.04. Reports by Company.............................................47
ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease...........47
SECTION 8.01. Company May Consolidate, etc., Only on Certain Terms...........47
SECTION 8.02. Successor Substituted..........................................48
ARTICLE IX Supplemental Indentures........................................48
SECTION 9.01. Supplemental Indentures Without Consent of Holders.............48
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SECTION 9.02. Supplemental Indentures With Consent of Holders................49
SECTION 9.03. Execution of Supplemental Indentures...........................51
SECTION 9.04. Effect of Supplemental Indentures..............................51
SECTION 9.05. Conformity With Trust Indenture Act............................51
SECTION 9.06. Reference in Securities to Supplemental Indentures.............51
SECTION 9.07. Notice of Supplemental Indenture...............................52
ARTICLE X Covenants......................................................52
SECTION 10.01. Payment of Principal, Premium and Interest.....................52
SECTION 10.02. Maintenance of Office or Agency................................52
SECTION 10.03. Money for Security Payments To Be Held in Trust................53
SECTION 10.04. Statement by Officers as to Default............................54
SECTION 10.05. Existence......................................................54
SECTION 10.06. Waiver of Certain Covenants....................................54
SECTION 10.07. Additional Amounts.............................................55
ARTICLE XI Redemption of Securities.......................................56
SECTION 11.01. Applicability of Article.......................................56
SECTION 11.02. Election To Redeem; Notice to Trustee..........................56
SECTION 11.03. Selection by Trustee of Securities To Be Redeemed..............56
SECTION 11.04. Notice of Redemption...........................................57
SECTION 11.05. Deposit of Redemption Price....................................58
SECTION 11.06. Securities Payable on Redemption Date..........................58
SECTION 11.07. Securities Redeemed in Part....................................58
ARTICLE XII Subordination of Securities....................................59
SECTION 12.01. Securities Subordinated to Senior Indebtedness.................59
SECTION 12.02. Payment Over of Proceeds Upon Dissolution, etc.................59
SECTION 12.03. Prior Payment to Senior Indebtedness On Acceleration of
Securities.....................................................61
SECTION 12.04. No Payment When Senior Indebtedness in Default.................61
SECTION 12.05. Payment Permitted If No Default................................63
SECTION 12.06. Subrogation to Rights of Holders of Senior Indebtedness........63
SECTION 12.07. Provisions Solely To Define Relative Rights....................64
SECTION 12.08. Trustee To Effectuate Subordination............................64
SECTION 12.09. No Waiver of Subordination Provisions..........................64
SECTION 12.10. Notice to Trustee..............................................65
SECTION 12.11. Reliance on Judicial Order or Certificate of Liquidating
Agent..........................................................66
SECTION 12.12. Trustee Not Fiduciary for Holders of Senior Indebtedness.......66
SECTION 12.13. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights...............................66
SECTION 12.14. Article Applicable to Paying Agents............................66
SECTION 12.15. Certain Conversions Deemed Payment.............................67
SECTION 12.16. No Suspension of Remedies......................................67
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ARTICLE XIII Conversion of Securities.......................................67
SECTION 13.01. Conversion Privilege and Conversion Price......................67
SECTION 13.02. Exercise of Conversion Privilege...............................68
SECTION 13.03. Fractions of Shares............................................69
SECTION 13.04. Adjustment of Conversion Price.................................69
SECTION 13.05. Notice of Adjustments of Conversion Price......................75
SECTION 13.06. Notice of Certain Corporate Action.............................76
SECTION 13.07. Company To Reserve Common Stock................................77
SECTION 13.08. Taxes on Conversions...........................................77
SECTION 13.09. Covenant as to Common Stock....................................77
SECTION 13.10. Cancellation of Converted Securities...........................78
SECTION 13.11. Provisions of Consolidation, Merger or Sale of Assets..........78
SECTION 13.12. Trustee's Disclaimer...........................................78
ARTICLE XIV Right To Require Repurchase....................................79
SECTION 14.01. Right To Require Repurchase....................................79
SECTION 14.02. Notice; Method of Exercising Repurchase Right..................79
SECTION 14.03. Deposit of Repurchase Price....................................80
SECTION 14.04. Securities Not Repurchased on Repurchase Date..................80
SECTION 14.05. Securities Repurchased in Part.................................80
SECTION 14.06. Certain Definitions............................................81
ARTICLE XV Meetings of Holders of Securities..............................82
SECTION 15.01. Purposes for Which Meetings May Be Called......................82
SECTION 15.02. Call, Notice and Place of Meetings.............................82
SECTION 15.03. Persons Entitled To Vote at Meetings...........................83
SECTION 15.04. Quorum; Action.................................................83
SECTION 15.05. Determination of Voting Rights; Conduct and Adjournment
of Meetings....................................................84
SECTION 15.06. Counting Votes and Recording Action of Meetings................84
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Certain Sections of this Indenture relating to Sections
310 through 318 of the Trust Indenture Act of 1939:
Section 310(a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 609
(b) 608
Section 311(a) 613
(b) 613
Section 312(a) 701
702(a)
(b) 702(b)
(c) 702(c)
Section 313(a) 703(a)
(b) 703(a)
(c) 703(a)
(d) 703(b)
Section 314(a) 704
(a)(4) 1004
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315(a) 601
(b) 602
(c) 601
(d) 601
(e) 514
Section 316(a)(1)(A) 502
512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) 104(c)
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318(a) 107
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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