EXHIBIT 4.1
------------------------------------------------------------------------
THE BEAR ▇▇▇▇▇▇▇ COMPANIES INC.
and
THE CHASE MANHATTAN BANK
Trustee
INDENTURE
Dated as of January 29, 1997
JUNIOR SUBORDINATED DEBENTURES
------------------------------------------------------------------------
Reconciliation and Tie Sheet*
between
Provisions of the Trust Indenture Act of 1939, as amended
and
Indenture Dated as of
between
The Chase Manhattan Bank, Trustee
Section of Act Section of Indenture
-------------- --------------------
310(a)(1) 7.09
310(a)(2) 7.09
310(a)(3) Inapplicable
310(a)(4) Inapplicable
310(b) 7.08, 7.10
310(c) Inapplicable
311(a) 7.13(a), 7.13(c)
311(b) 7.13(b), 7.13(c)
311(c) Inapplicable
312(a) 5.01, 5.02(a)
312(b) 5.02(b)
312(c) 5.02(c)
313(a) 5.04(a)
313(b)(1) Inapplicable
313(b)(2) 5.04(b)
313(c) 5.04(c)
313(d) 5.04(d)
314(a)(1) 5.03(a)
314(a)(2) 5.03(b)
314(a)(3) 5.03(c)
314(a)(4) 4.06
314(b) Inapplicable
314(c)(1) 15.04
314(c)(2) 15.04
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 15.04
314(f) Omitted
315(a) 7.01
315(b) 6.07
315(c) 7.01
315(d) 7.01
315(e) 6.08
316(a)(1) 6.06, 8.04
316(a)(2) Omitted
316(b) 6.04
316(c) 10.05
317(a) 6.02
317(b) 4.04
318(a) 15.06
*This Reconciliation and Tie Sheet is not part of the Indenture.
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.................................. 1
Section 1.01. Certain terms defined........................... 1
Additional Interest...................................... 2
Additional Sums.......................................... 2
Administrators........................................... 2
Authenticating Agent..................................... 2
Authorized Newspaper..................................... 2
Bear ▇▇▇▇▇▇▇ Guarantee................................... 3
Bear ▇▇▇▇▇▇▇ Trust....................................... 3
Board of Directors....................................... 3
Business Day............................................. 3
Capital Securities....................................... 3
Capital Securities Guarantee............................. 3
Capital Stock............................................ 3
Commission............................................... 4
Common Stock............................................. 4
Company.................................................. 4
Compounded Interest........................................4
Depositary............................................... 4
Distributions............................................ 4
Event of Default......................................... 4
Extension Period......................................... 5
Guarantee Agreement...................................... 5
Indenture................................................ 5
Indebtedness............................................. 5
Maturity................................................. 5
1940 Act................................................. 5
Officers' Certificate.................................... 5
Opinion of Counsel....................................... 6
Original Issue Date...................................... 6
Original Issue Discount Security......................... 6
Paying Agent............................................. 6
Person................................................... 6
Principal................................................ 6
Property Trustee......................................... 6
Ranking junior to the Securities......................... 7
Ranking on a parity with the Securities.................. 7
Register................................................. 7
Resolution of the Company................................ 7
Responsible Officer...................................... 7
Rights Plan.............................................. 7
Security or Securities; outstanding...................... 8
Securityholder; registered holder........................ 8
Senior Indebtedness of the Company....................... 9
Special Interest...........................................9
ii
Stated Maturity.......................................... 9
Subsidiary............................................... 9
Tax Event................................................ 10
Trust Agreement.......................................... 10
Trustee; Principal Office of the Trustee................. 10
Trust Indenture Act of 1939.............................. 10
Trust Securities......................................... 10
ARTICLE II ISSUE, DESCRIPTION, EXECUTION, REGISTRATION OF
TRANSFER AND EXCHANGE OF SECURITIES................. 11
Section 2.01. Amount, series and delivery of Securities.... 11
Section 2.02. Form of Securities and Trustee's Certificate. 14
Section 2.03. Denominations of and payment of interest on
Securities ...................................16
Section 2.04. Execution of Securities...................... 16
Section 2.05. Registration, transfer and exchange of
Securities ...................................17
Section 2.06. Temporary Securities......................... 19
Section 2.07. Mutilated, destroyed, lost or stolen
Securities ...................................19
Section 2.08. Cancellation and destruction of surrendered
Securities ...................................20
Section 2.09. Authenticating Agents........................ 20
Section 2.10. Deferrals of Interest Payment Dates.......... 21
Section 2.11. Right of Set-Off............................. 22
Section 2.12. Shortening or Extension of Stated Maturity... 22
Section 2.13. Agreed Tax Treatment......................... 23
ARTICLE III REDEMPTION OF SECURITIES..................... 23
Section 3.01. Applicability of Article..................... 23
Section 3.02. Mailing of notice of redemption.............. 23
Section 3.03. When Securities called for redemption become
due and payable ..............................24
Section 3.04. Right of redemption of Securities initially
issued to a Bear ▇▇▇▇▇▇▇ Trust............... 25
ARTICLE IV PARTICULAR COVENANTS OF THE COMPANY.......... 25
Section 4.01. Payment of principal of and interest on
Securities.................................. 25
Section 4.02. Maintenance of offices or agencies for
registration of transfer, exchange and
payment of Securities........................ 25
Section 4.03. Appointment to fill a vacancy in the office
of Trustee ...................................26
Section 4.04. Duties of Paying Agent....................... 26
Section 4.05. Further assurances........................... 27
Section 4.06. Officers' Certificate as to defaults; notices
of certain defaults ..........................27
Section 4.07. Waiver of covenants.......................... 27
Section 4.08. Additional Sums.............................. 27
Section 4.09. Additional Covenants......................... 28
ARTICLE V SECURITYHOLDERS LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE.............................. 29
iii
Section 5.01. Company to furnish Trustee information as to
the names and addresses of Securityholders... 29
Section 5.02. Trustee to preserve information as to the
names and addresses of Securityholders
received by it............................... 29
Section 5.03. Annual and other reports to be filed by
Company With Trustee .........................30
Section 5.04. Trustee to transmit annual report to
Securityholders ..............................31
ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT............................. 32
Section 6.01. Events of Default defined.................... 32
Section 6.02. Covenant of Company to pay to Trustee whole
amount due on Securities or default in payment
of interest or principal .....................34
Section 6.03. Application of moneys collected by Trustee... 36
Section 6.04. Limitation on suits by holders of Securities. 37
Section 6.05. On Default Trustee may take appropriate action37
Section 6.06. Rights of holders of majority in principal
amount of Securities to direct Trustee and to
waive default................................ 38
Section 6.07. Trustee to give notice of defaults known to it,
but may withhold in certain circumstances.... 38
Section 6.08. Requirement of an undertaking to pay costs in
certain suits under the Indenture or against
the Trustee.................................. 39
ARTICLE VII CONCERNING THE TRUSTEE......................... 39
Section 7.01. Upon Event of Default occurring and continuing,
Trustee shall exercise powers vested in it,
and use same degree of care and skill in their
exercise, as a prudent man would use......... 39
Section 7.02. Reliance on documents, opinions, etc......... 40
Section 7.03. Trustee not liable for recitals in Indenture
or in Securities .............................41
Section 7.04. May own Securities........................... 41
Section 7.05. Moneys received by Trustee to be held in trust
without interest .............................41
Section 7.06. Trustee entitled to compensation, reimbursement
and indemnity ................................41
Section 7.07. Right of Trustee to rely on Officers'
Certificate where no other evidence specifically
prescribed................................... 42
Section 7.08. Disqualification; conflicting interests...... 42
Section 7.09. Requirements for eligibility of Trustee...... 42
Section 7.10. Resignation of Trustee....................... 42
Section 7.11. Acceptance by successor Trustee.............. 44
Section 7.12. Successor to Trustee by merger, consolidation
or succession to business.................... 45
Section 7.13. Limitations on rights of Trustee as a creditor
to obtain payment of certain claims within
three months prior to default or during
default, or to realize on property as such
creditor thereafter ..........................45
ARTICLE VIII CONCERNING THE SECURITYHOLDERS................ 48
Section 8.01. Evidence of action by Securityholders........ 48
Section 8.02. Proof of execution of instruments and of
holding of
Section 8.03. Who may be deemed owners of Securities....... 49
iv
Section 8.04. Securities owned by Company or controlled or
controlling persons disregarded for certain
purposes..................................... 49
Section 8.05. Instruments executed by Securityholders bind
future holders............................... 50
ARTICLE IX SECURITYHOLDERS' MEETINGS.................... 50
Section 9.01. Purposes for which meeting, may be called.... 50
Section 9.02. Manner of calling meetings................... 51
Section 9.03. Call of meeting by Company or Securityholders 51
Section 9.04. Who may attend and vote at meetings.......... 51
Section 9.05. Regulations may be made by Trustee........... 51
Section 9.06. Manner of voting at meetings and record to be
kept .........................................52
Section 9.07. Exercise of rights of Trustee, Securityholders
and holders of Capital Securities not to be
hindered or delayed.......................... 52
ARTICLE X SUPPLEMENTAL INDENTURES...................... 53
Section 10.01. Purposes for which supplemental indentures
may be entered into without consent of
Securityholders.............................. 53
Section 10.02. Modification of Indenture with consent of
holders of a majority in principal amount
of Securities................................ 54
Section 10.03. Effect of supplemental indentures............ 55
Section 10.04. Securities may bear notation of changes by
supplemental indentures ......................55
Section 10.05. Revocation and effect of Consents............ 56
ARTICLE XI CONSOLIDATION, MERGER, SALE OR CONVEYANCE.... 56
Section 11.01. Company may consolidate, etc., on certain
terms ........................................56
Section 11.02. Successor corporation substituted............ 56
Section 11.03. Opinion of Counsel to Trustee................ 57
ARTICLE XII SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.................................. 57
Section 12.01. Satisfaction and discharge of Indenture...... 57
Section 12.02. Application by Trustee of funds deposited
for payment of Securities ....................58
Section 12.03. Repayment of moneys held by Paying Agent..... 58
Section 12.04. Repayment of moneys held by Trustee.......... 58
ARTICLE XIII IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES............. 58
Section 13.01. Incorporators, stockholders, officers,
directors and employees of Company exempt from
individual liability......................... 58
ARTICLE XIV SUBORDINATION OF SECURITIES....................... 59
Section 14.01. Agreement to subordinate..................... 59
Section 14.02. Obligation of the Company unconditional...... 60
v
Section 14.03. Limitations on duties to holders of Senior
Indebtedness of the Company.................. 60
Section 14.04. Notice to Trustee of facts prohibiting payment61
Section 14.05. Application by Trustee of moneys deposited
with it ......................................61
Section 14.06. Subrogation.................................. 61
Section 14.07. Subordination rights not impaired by acts or
omissions of Company or holders of Senior
Indebtedness of the Company ..................61
Section 14.08. Authorization of Trustee to effectuate
subordination of Securities ..................62
Section 14.09. No Payment when Senior Indebtedness in default62
Section 14.10. Right of Trustee to hold Senior Indebtedness
of the Company ...............................63
Section 14.11. Article XIV not to prevent defaults.......... 63
ARTICLE XV CONVERSION OF SECURITIES............................63
Section 15.01. Applicability of Article..................... 63
Section 15.02. Conversion privilege......................... 63
Section 15.03. Exercise of conversion privilege............. 63
Section 15.04. Fractional Interests......................... 64
Section 15.05. Conversion Price............................. 64
Section 15.06. Adjustment of Conversion Price............... 64
Section 15.07. Continuation of conversion privilege in case
of reclassification, change, merger, ▇▇▇▇▇▇▇-
dation or sale of assets..................... 67
Section 15.08. Notice of certain events..................... 68
Section 15.09. Taxes on conversion.......................... 68
Section 15.10. Company to provide Stock..................... 68
Section 15.11. Disclaimer of responsibility for certain
matters ......................................69
Section 15.12. Return of funds deposited for redemption of
converted Securities .........................69
ARTICLE XVI MISCELLANEOUS PROVISIONS.......................... 69
Section 16.01. Successors and assigns of Company bound by
Indenture ....................................69
Section 16.02. Acts of board, committee or officer of
successor corporation valid..................69
Section 16.03. Required notices or demands may be served by
mail......................................... 70
Section 16.04. Officers' Certificate and Opinion of
Counsel to be furnished upon applications or
demands by the Company....................... 70
Section 16.05. Payments due on Saturdays, Sundays, and
holidays .....................................71
Section 16.06. Provisions required by Trust Indenture Act
of 1939 to control ...........................71
Section 16.07. Indenture and Securities to be construed in
accordance with the laws of the State of
New York..................................... 71
Section 16.08. Provisions of the Indenture and Securities for
the sole benefit of the parties and the
Securityholders.............................. 71
Section 16.09. Indenture may be executed in counterparts.... 71
Section 16.10. Securities in foreign currencies............. 71
vi
THIS INDENTURE, dated as of the 29th day of January, 1997 between
THE BEAR ▇▇▇▇▇▇▇ COMPANIES INC., a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter sometimes referred to as the
"Company"), party of the first part, and THE CHASE MANHATTAN BANK, a banking
corporation duly organized and existing under the laws of the State of New York
(hereinafter sometimes referred to as the "Trustee"), party of the second part,
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issuance from time to time of its unsecured subordinated
debentures or other evidences of indebtedness (hereinafter referred to as the
"Securities"), without limit as to principal amount, issuable in one or more
series, the amount and terms of each such series to be determined as hereinafter
provided, including, without limitation, Securities issued to evidence loans
made to the Company of the proceeds from the issuance from time to time by one
or more business trusts (each a "Bear ▇▇▇▇▇▇▇ Trust" and collectively, the "Bear
▇▇▇▇▇▇▇ Trusts" or the "Trusts") of preferred interests in such Trusts (the
"Capital Securities" which may also be referred to, without limitation, as the
"Preferred Securities") and common interests in such Trusts (the "Common
Securities," and collectively with the Common Securities, the "Trust
Securities"); to be authenticated by the certificate of the Trustee; and, to
provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all acts and things necessary to make the Securities when
executed by the Company and authenticated and delivered by the Trustee as in
this Indenture provided, the valid, binding and legal obligations of the
Company, and to constitute these presents a valid indenture and agreement
according to its terms, have been done and performed and the execution of this
Indenture and the issue hereunder of the Securities have in all respects been
duly authorized, and the Company, in the exercise of the legal rights and power
vested in it, executes this Indenture and proposes to make, execute, issue and
deliver the Securities;
NOW, THEREFORE, in order to declare the terms and conditions upon
which the Securities are authenticated, issued and delivered, and in
consideration of the premises and of the purchase and acceptance of the
Securities by the holders thereof, the Company covenants and agrees with the
Trustee, for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of series thereof, as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain terms defined. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) All other terms used herein which are defined in the Trust
Indenture Act of 1939, as amended, either directly or by reference therein, have
the meanings assigned to them therein;
1
(c) All accounting terms used herein and not expressly defined
herein shall have the meanings assigned to them in accordance with generally
accepted accounting principles, and the term "generally accepted accounting
principles" with respect to any computation required or permitted hereunder
shall mean such accounting principles which are generally accepted at the date
or time of such computation; and
(d) The terms "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.
Additional Interest:
The term "Additional Interest" means the interest, if any, that
shall accrue on any interest on the Securities of any series the payment of
which has not been made on the applicable interest payment date and which shall
accrue at the rate per annum specified or determined as specified in such
Security.
Additional Sums:
The term "Additional Sums" shall have the meaning specified in
Section 4.08.
Administrators:
The term "Administrator" means, in respect of any Bear ▇▇▇▇▇▇▇ Trust
each Person identified as an "Administrator" in the related Trust Agreement,
solely in such Person's capacity as Administrator of such Bear ▇▇▇▇▇▇▇ Trust
under such Trust Agreement and not in such Person's individual capacity, or any
successor administrative trustee appointed as therein provided.
Authenticating Agent:
The term "Authenticating Agent" shall mean any Authenticating Agent
appointed by the Trustee pursuant to Section 2.09.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper in the
Borough of Manhattan, The City of New York, State of New York, each of which is
printed in the English language and customarily published at least once a day
for at least five days in each calendar week and of general circulation in such
city. Whenever successive publications are required to be made in an Authorized
Newspaper, the successive publications may be made in the same or in a different
newspaper meeting the foregoing requirements and in each case on any day of the
week. If it is impossible or, in the opinion of the Trustee, impracticable to
publish any notice in the manner herein provided, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
2
Bear ▇▇▇▇▇▇▇ Guarantee:
The term "Bear ▇▇▇▇▇▇▇ Guarantee" shall mean the guarantee by the
Company of distributions on the Capital Securities of a Bear ▇▇▇▇▇▇▇ Trust to
the extent provided in the applicable Guarantee Agreement.
Bear ▇▇▇▇▇▇▇ Trust:
The term "Bear ▇▇▇▇▇▇▇ Trust" shall mean a Delaware business trust,
or any similar trust created for the purpose of issuing Capital Securities in
connection with the issuance of Securities under this Indenture of which the
Company is the sponsor.
Board of Directors:
The term "Board of Directors," when used with reference to the
Company, shall mean the Board of Directors of the Company or the Executive
Committee or any other committee of or created by the Board of Directors of the
Company duly authorized to act hereunder.
Business Day:
The term "business day" shall mean any day which is not a Saturday
or Sunday and which in the City of New York is neither a legal holiday nor a day
on which banking institutions are authorized by law or executive order to close
or a day on which the corporate trust office of the Trustee is closed for
business.
Capital Securities:
The term "Capital Securities" shall mean undivided beneficial
interests in the assets of a Bear ▇▇▇▇▇▇▇ Trust which rank pari passu with
Common Securities issued by such Bear ▇▇▇▇▇▇▇ Trust; provided, however, that
upon the occurrence of an Event of Default (as defined in the Trust Agreement
with respect to such Bear ▇▇▇▇▇▇▇ Trust), the rights of holders of such Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights of holders of such
Capital Securities.
Capital Securities Guarantee:
The term "Capital Securities Guarantee" shall mean, in respect of
any Bear ▇▇▇▇▇▇▇ Trust, any guarantee that the Company may enter into with The
Chase Manhattan Bank or other Persons that operates directly or indirectly for
the benefit of holders of Capital Securities of such Bear ▇▇▇▇▇▇▇ Trust.
Capital Stock:
The term "Capital Stock" shall mean shares of capital stock of any
class of any corporation whether now or hereafter authorized regardless of
whether such capital stock shall be limited to a fixed sum or percentage in
respect of the rights of the holders thereof to participate in dividends and in
the distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up.
3
Commission:
The term "Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the Securities
Exchange Act of 1934, as amended, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act of 1939, then the body performing
such duties on such date.
Common Stock:
The term "Common Stock" means the common stock, par value $1.00 per
share, of the Company.
Company:
The term "Company" shall mean The Bear ▇▇▇▇▇▇▇ Companies Inc., a
corporation duly organized and existing under the laws of the State of Delaware
and, subject to the provisions of Article XI, shall also include its successors
and assigns.
Compounded Interest
The term "Compounded Interest" shall mean with respect to any series
of Securities any interest designated as Compounded Interest with respect to the
Securities of such series as contemplated by Section 2.01.
Depositary:
The term "Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more global
Securities, the person designated as Depositary by the Company pursuant to
Section 2.01 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter the term "Depositary"
shall mean or include each person who is then a Depositary hereunder and if at
any time there is more than one such person, the term "Depositary" as used with
respect to the Securities of any series shall mean the Depositary with respect
to the Securities of such series.
Distributions:
The term "Distributions," with respect to the Trust Securities
issued by a Bear ▇▇▇▇▇▇▇ Trust means amounts payable in respect of such Trust
Securities as provided in the related Trust Agreement and referred to therein as
"Distributions."
Event of Default:
The term "Event of Default" with respect to Securities of any series
shall mean any event specified as such in Section 6.01 and any other event as
may be established with respect to the Securities of such series as contemplated
by Section 2.01.
4
Extension Period:
The term "Extension Period" has the meaning specified in Section
2.10.
Guarantee Agreement:
The term "Guarantee Agreement" means the guarantee agreement
executed by the Company of distributions on the Capital Securities of a Bear
▇▇▇▇▇▇▇ Trust to the extent provided in any Bear ▇▇▇▇▇▇▇ Guarantee.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed, or, if amended or supplemented as herein provided, then as so amended
or supplemented, and shall include the form and terms of particular series of
Securities established as contemplated by Sections 2.01 and 2.02.
Indebtedness:
The term "Indebtedness" or "indebtedness" shall mean with respect to
any person, whether recourse is to all or a portion of the assets of such person
and whether or not contingent, (i) every obligation of such person for money
borrowed; (ii) every obligation of such person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses; (iii) every
reimbursement obligation of such person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
person; (iv) every obligation of such person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of such person; (vi) every obligation of such person
for claims in respect of derivative products such as interest and foreign
exchange rate contracts, commodity contracts and similar arrangements; and (vii)
and every obligation of the type referred to in clauses (i) through (vi) of
another person and all dividends of another person the payment of which, in
either case, such person has guaranteed or is responsible or liable, directly or
indirectly, as obligor or otherwise.
Maturity:
The term "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 or by declaration of
acceleration, call for redemption or otherwise.
1940 Act:
The term "1940 Act" means the Investment Company Act of 1940, as
amended.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by
the Chairman of the Board, any Vice Chairman of the Board, the President, any
Vice Chairman, any Executive Vice President, the Chief Operating Officer or the
Chief Financial Offer of the Company (whether or not
5
designated by a number or a word or words added before or after the title Vice
President) and by the Treasurer or an Assistant Treasurer, Controller or the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee.
Each such certificate shall include the statements provided for in Section
16.04, if and to the extent required by the provisions thereof and will comply
with Section 314 of the Trust Indenture Act of 1939.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing
signed by legal counsel, who shall be satisfactory to the Trustee, and who may
be an employee of, or counsel to, the Company and delivered to the Trustee. Each
such opinion shall include the statements provided for in Section 16.04, if and
to the extent required by the provisions thereof and will comply with Section
314 of the Trust Indenture Act of 1939.
Original Issue Date:
The term "Original Issue Date" means the first date of issuance of
each Security.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean any Security
which provides for an amount less than the principal amount thereof to be due
and payable upon declaration pursuant to Section 6.01.
Paying Agent:
The term "Paying Agent" means the Trustee or any Person authorized
by the Company to pay the principal or interest on any Securities on behalf of
the Company.
Person:
The term "Person" or "person" shall mean any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
Principal:
The term "principal," wherever used with reference to the Securities
or any Security or any portion thereof, shall be deemed to include "and premium,
if any."
Property Trustee:
The term "Property Trustee" means, in respect of any Bear ▇▇▇▇▇▇▇
Trust, the commercial bank or trust company identified as the "Property Trustee"
in the related Trust Agreement, solely in its capacity as Property Trustee of
such Bear ▇▇▇▇▇▇▇ Trust under such Trust Agreement and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as therein provided.
6
Ranking junior to the Securities:
The term "ranking junior to the Securities" when used with respect
to any obligation of the Company shall mean any obligation of the Company which
(a) ranks junior to and not equally with or prior to the Securities (or any
other obligations of the Company ranking on a parity with the Securities) in
right of payment upon the happening of any event of the kind specified in the
first sentence of the first paragraph of Section 14.01, (b) is specifically
designated as ranking junior to the Securities by express provision in the
instrument creating or evidencing such obligation.
The securing of any obligations of the Company, otherwise ranking
junior to the Securities, shall be deemed to prevent such obligations from
constituting obligations ranking junior to the Securities.
Ranking on a parity with the Securities:
The term "ranking on a parity with the Securities" when used with
respect to any obligation of the Company shall mean any obligation of the
Company which (a) ranks equally with and not prior to the Securities in right of
payment upon the happening of any event of the kind specified in the first
sentence of the first paragraph of Section 14.01, including without limitation,
the obligation of the Company under the EPICs Loan Agreement (as such term is
defined within the definition of "Senior Indebtedness of the Company" below) and
(b) is specifically designated as ranking on a parity with the Securities by
express provision in the instrument creating or evidencing such obligation.
The securing of any obligations of the Company, otherwise ranking on
a parity with the Securities, shall not be deemed to prevent such obligations
from constituting obligations ranking on a parity with the Securities.
Register:
The term "Register" shall have the meaning specified in Section
2.05.
Resolution of the Company:
The term "Resolution of the Company" means a resolution of the
Company, in the form of a resolution of the Board of Directors or in the form of
a resolution of senior officers of the Company pursuant to the Bylaws,
authorizing, ratifying, setting forth or otherwise validating agreements,
execution and delivery of documents, the issuance, form and terms of securities,
or any other actions or proceedings pursuant or with respect to this Indenture.
Responsible Officer:
The term "Responsible Officer," when used with respect to the
Trustee, shall mean the Chairman and Vice Chairman of the Board of Directors,
the President, the Chairman and vice chairman of the executive committee of the
Board of Directors, every Vice President or officer senior thereto, every
assistant Vice President, the Secretary, every Assistant Secretary, the
Treasurer, every assistant Treasurer, every Corporate Trust Officer, every
Assistant Corporate Trust Officer, and every other officer and assistant officer
of the Trustee customarily performing functions similar to those performed by
7
the persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of, and familiarity
with, a particular subject.
Rights Plan:
The term "Rights Plan" means a plan of the Company providing for the
issuance by the Company to all holders of its Common Stock of rights entitling
the holders thereof to subscribe for or purchase shares of Common Stock or any
class or series of preferred stock, which rights (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
until the occurrence of a specified event or events.
Security or Securities; outstanding:
The term "Security" or "Securities" shall mean any security or
securities of the Company, as the case may be, without regard to series,
authenticated and delivered under this Indenture.
The term "outstanding," when used with reference to Securities,
shall, subject to the provisions of Section 8.04, mean as of any particular
time, all Securities authenticated and delivered by the Trustee under this
Indenture, except
(a) Securities theretofore cancelled 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 shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall act as
its own paying agent), provided that such Securities shall have reached their
Stated Maturity or, if such Securities are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as in Article III
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered or which have been paid
pursuant to the terms of Section 2.07 unless proof satisfactory to the Trustee
is presented that any such Securities are held by persons in whose hands any of
such Securities is a valid, binding and legal obligation of the Company.
In determining whether the holders of the requisite principal amount
of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be outstanding for such
purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to Section 6.01.
Securityholder; registered holder:
The terms "Securityholder," "holder of Securities," "registered
holder" or other similar term, shall mean any person who shall at the time be
the registered holder of any Security or Securities on the Register kept for
that purpose in accordance with the provisions of this Indenture.
8
Senior Indebtedness of the Company:
The term "Senior Indebtedness of the Company" shall mean the
principal of and premium, if any, and interest, if any (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such claim for
post-petition interest is allowed in such proceeding), on Indebtedness, whether
incurred on or prior to the date of the Indenture or thereafter incurred,
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such obligations are not superior
in right of payment to the Securities or to other Indebtedness which is pari
passu with, or subordinated to, the Securities; provided, however, that Senior
Indebtedness shall not be deemed to include (i) any Indebtedness of the Company
which when incurred and without respect to any election under Section 1111(b) of
the Federal Bankruptcy Code was without recourse to the Company, (ii) any
Indebtedness of the Company to any of its subsidiaries, (iii) Indebtedness to
any employee of the Company, (iv) Indebtedness which by its terms is
subordinated to trade accounts payable or accrued liabilities arising in the
ordinary course of business to the extent that payments made to the holders of
such Indebtedness by the holders of the Securities as a result of the
subordination provisions of the Indenture would be greater than such payments
otherwise would have been as a result of any obligation of such holders of such
Indebtedness to pay amounts over to the obligees on such trade accounts payable
or accrued liabilities arising in the ordinary course of business as a result of
subordination provisions to which such Indebtedness is subject, and (v) any
other debt securities issued pursuant to the Indenture. The Securities of all
series will rank pari passu with, and will not be superior in right of payment
to, the obligation of the Company under the Loan Agreement (the "EPICS Loan
Agreement") dated as of February 24, 1994, between the Company and Bear ▇▇▇▇▇▇▇
Finance LLC ("BS Finance") in the aggregate principal amount of $189,875,000
(the "EPICS Loan") entered into in connection with the issuance by BS Finance of
6,000,000 shares of 8% Exchangeable Preferred Income Cumulative Shares
("EPICS"), Series A (having an aggregate liquidation preference of
$150,000,000).
Special Interest:
The term "Special Interest" shall mean with respect to any series of
Securities any interest designated as Special Interest with respect to the
Securities of such series as contemplated by Section 2.01.
Stated Maturity:
The term "Stated Maturity" when used with respect to any Security or
any installment of principal thereof or interest thereon means the date
specified pursuant to the terms of such Security as the date on which the
principal of such Security or such installment of interest is due and payable in
the case of such principal, as such date may be shortened or extended as
provided pursuant to the terms of such Security and this Indenture.
Subsidiary:
The term "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 purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
9
Tax Event:
The term "Tax Event" means the receipt by a Bear ▇▇▇▇▇▇▇ Trust of an
Opinion of Counsel (as defined in the relevant Trust Agreement) experienced in
such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Capital Securities
of such Bear ▇▇▇▇▇▇▇ Trust, there is more than an insubstantial risk that (i)
the Bear ▇▇▇▇▇▇▇ Trust is, or will be within 90 days of the date of such Opinion
of Counsel, subject to United States federal income tax with respect to income
received or accrued on the corresponding series of Securities issued by the
Company to such Bear ▇▇▇▇▇▇▇ Trust, (ii) interest payable by the Company on such
corresponding series of Securities is not, or within 90 days of the date of such
Opinion of Counsel, will not be, deductible, in whole or in part, for United
States federal income tax purposes, or (iii) the Bear ▇▇▇▇▇▇▇ Trust is, or will
be within 90 days of the date of such Opinion of Counsel, subject to more than a
de minimis amount of taxes, duties or governmental charges.
Trust Agreement:
The term "Trust Agreement" means any Trust Agreement governing any
Bear ▇▇▇▇▇▇▇ Trust whether now existing or created in the future, relating to
the Securities of any series in, and including, without limitation, the Bear
▇▇▇▇▇▇▇ Capital Trust I Trust Agreement dated January 14, 1997 as amended by the
Amended and Restated Trust Agreement dated as of January 29, 1997, as amended
from time to time.
Trustee; Principal Office of the Trustee:
The term "Trustee" shall mean The Chase Manhattan Bank and, subject
to the provisions of Article VII, shall also include its successors. The term
"principal office" of the Trustee shall mean the corporate trust office of the
Trustee at which the corporate trust business of the Trustee shall, at any
particular time, be principally administered. The present address of the office
at which the corporate trust business of the Trustee is administered is ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Trust Indenture Act of 1939:
Except as herein otherwise expressly provided or unless the context
requires otherwise, the term "Trust Indenture Act of 1939" shall mean the Trust
Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, as
in force at the date as of which this Indenture was originally executed.
Trust Securities:
The term "Trust Securities," shall mean the Common Securities and
Capital Securities of a Bear ▇▇▇▇▇▇▇ Trust.
10
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION OF
TRANSFER AND EXCHANGE OF SECURITIES
Section 2.01. Amount, series and delivery of Securities. 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. The terms of
each series (which terms shall not be inconsistent with the provisions of this
Indenture) including:
(1) The designation of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities and
which shall include the word "subordinated" or a word of like meaning);
(2) Any limit upon the aggregate principal amount of the Securities
of the series which may be executed, authenticated and delivered under
this Indenture; provided, however, that nothing contained in this Section
or elsewhere in this Indenture or in the Securities or in such resolution
or in such certificate is intended to or shall limit execution by the
Company or authentication and delivery by the Trustee of Securities under
the circumstances contemplated by Sections 2.05, 2.06, 2.07, 3.02, 3.03
and 10.04;
(3) The date or dates (if any) on which the principal of the
Securities of the series is payable;
(4) The rate or rates at which the Securities of the series shall
bear interest, if any, including Additional Sums, Additional Interest,
Compounded Interest and Special Interest, if any, the date or dates from
which such interest shall accrue, the dates on which such interest shall
be payable and the record date for the interest payable on any interest
payment date and the right to defer the payment of interest in accordance
with Section 2.10;
(5) The place or places where Securities of the series may be
presented for payment and for the other purposes provided in Section 4.02;
(6) Any price or prices at which, any period or periods within
which, and any terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(7) The type or types (if any) of Capital Stock of the Company into
which, any period or periods within which, and any terms and conditions
upon which Securities of the series may be made payable, converted,
exchanged in whole or in part, at the option of the holder or of the
Company;
(8) If other than denominations of $1,000 and any whole multiple
thereof, the denominations in which Securities of the series shall be
issuable;
11
(9) If other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.01;
(10) If other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency (which may be a composite currency) in
which payment of the principal of (and premium, if any) and interest, if
any, on the Securities of that series shall be payable;
(11) If the principal of (and premium, if any) or interest, if any,
on the Securities of that series are to be payable, at the election of the
Company or a holder thereof, in a coin or currency (including a composite
currency) other than that in which the Securities are stated to be
payable, the period or periods within which, and the terms and conditions
upon which, such election may be made;
(12) If the amounts of payments of principal of (and premium, if
any) or interest, if any, on the Securities of the series may be
determined with reference to an index based on a coin or currency
(including a composite currency) other than that in which the Securities
are stated to be payable, the manner in which such amounts shall be
determined;
(13) If the Securities of the series are payable at maturity or upon
earlier redemption in Capital Stock, the terms and conditions upon which
such payment shall be made;
(14) The person or persons who shall be registrar for the Securities
of the series, and the place or places where the Register of the
Securities of the series shall be kept;
(15) Any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
(16) Whether any Securities of the series are to be issuable in
global form with or without coupons, and, if so, the Depositary for such
global Securities and whether beneficial owners of interests in any such
global Security may exchange such interests for definitive Securities of
such series and of like tenor of any authorized form and denomination and
the circumstances under which, and the place or places where, any such
exchanges may occur, if other than in the manner provided in Section 2.05;
(17) The form of Trust Agreement and Guarantee Agreement, if
applicable;
(18) If applicable, the relative degree to which Securities of the
series shall be senior to or be subordinated to other Series of such
Securities or other indebtedness of the Company in right of payment,
whether such other series of Securities or other indebtedness are
outstanding or not; and
(19) Whether the Securities of the series are to be issued pursuant
to an exemption from registration under the Securities Act; and
(20) Any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture);
12
or in any case, the method for determining such terms, the persons authorized to
determine such terms and the limits, if any, within which any such determination
of such terms is to be made shall either be established in or pursuant to a
Resolution of the Company and set forth in an Officers' Certificate, or set
forth in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series.
The Securities of all series shall be subordinate to Senior
Indebtedness of the Company as provided in Article XIV. The applicable Officers'
Certificate or supplemental indenture may provide that Securities of any
particular series may be issued at various times, with different dates on which
the principal or any installment of principal is payable, with different rates
of interest, if any, or different methods by which interest may be determined,
with different dates from which such interest shall accrue, with different dates
on which such interest may be payable or with any different terms other than
Events of Default but all such Securities of a particular series shall for all
purposes under this Indenture including, but not limited to, voting and Events
of Default, be treated as Securities of a single series.
If any of the terms of the series are established by action taken
pursuant to a Resolution of the Company, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate or supplemental indenture setting forth the terms of the
series.
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 by it, and the Trustee shall
thereupon authenticate and deliver said Securities to or upon the written order
of the Company, signed by its Chairman of the Board, any Vice Chairman of the
Board, its President, any Vice Chairman, any Executive Vice President, the Chief
Operating Officer or the Chief Financial Officer of the Company, and by its
Treasurer or an Assistant Treasurer, Controller or its Secretary or an Assistant
Secretary, without any further corporate action by the Company. If the form or
terms of the Securities of the series have been established in or pursuant to
one or more Resolutions of the Company and set forth in an Officers' Certificate
or set forth in one or more indentures supplemental hereto, as permitted by this
Section and Section 2.02, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon:
(a) an Opinion of Counsel stating:
(i) If the form or terms of such Securities have been
established by or pursuant to Resolutions of the Company as permitted by Section
2.02 and set forth in an Officers' Certificate, that such form and terms have
been established in conformity with the provisions of this Indenture;
(ii) If the form or terms of such Securities have been
established by or pursuant to a Resolution of the Company and set forth in one
or more indentures supplemental hereto as permitted by Section 2.02, that such
form and terms have been established in conformity with the provisions of this
Indenture;
(iii) That such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal, valid
and binding obligations of the Company, enforceable in accordance with their
terms, entitled to the benefits of the Indenture, subject to bankruptcy,
insolvency, reorganization and
13
other laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles;
(iv) If the form or terms of such Securities provide for the
conversion of such Securities into shares of Capital Stock of the Company, or
the payment in Capital Stock upon maturity or earlier redemption of the
Securities, that the Company has reserved a number of shares of Capital Stock
sufficient for issuance upon such conversion or payment, and such shares of
Capital Stock are fully paid and nonassessable; and
(v) Such other matters as the Trustee may reasonably request.
(b) An Officers' Certificate setting forth the form and terms of the
Securities of such series pursuant to Section 2.01 and Section 2.02 hereof (but
only if the form and terms of the Securities of such series are not set forth in
one or more supplemental indentures hereto) and stating that all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities have been complied with, that no Event of Default
with respect to any series of Securities has occurred and is continuing and that
the issuance of such Securities is not and will not result in (i) an Event of
Default or an event or condition which, upon the giving of notice (or the
acquisition of knowledge) or the lapse of time or both, would become an Event of
Default or (ii) a default under the provisions of any other instrument or
agreement by which the Company is bound.
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.
If all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver either an Opinion of Counsel or an
Officers' Certificate at the time of issuance of each Security, provided that
such Opinion of Counsel and Officers' Certificate, with appropriate
modifications, are instead delivered at or prior to the time of issuance of the
first Security of such series.
Each Security shall be dated the date of its authentication.
Section 2.02. Form of Securities and Trustee's Certificate. The
Securities of each series shall be substantially of the tenor and purport as
shall be authorized in or pursuant to a Resolution of the Company and set forth
in an Officers' Certificate or set forth in an indenture or 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
or designation and such legends or endorsements thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Indenture,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Securities may be listed, or to conform to usage. If the form of Securities
of any series is authorized by action taken pursuant to a Resolution of the
Company, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant
14
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate contemplated by Section 2.01 setting forth
the terms of the series.
The Securities may be printed, lithographed or fully or partly
engraved.
The Trustee's certificate of authentication shall be in
substantially the following form:
"This is one of the Securities, of the series designated therein,
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By -----------------------------
Authorized Officer"
If Securities of a series are issuable in global form, as specified
pursuant to Section 2.01, then, notwithstanding clause (8) of Section 2.01 and
the provisions of Section 2.03, such Security shall represent such of the
outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of outstanding Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such person or persons as shall be specified in such Security or by the
Company. Subject to the provisions of Section 2.04 and, if applicable, Section
2.06, the Trustee shall deliver and redeliver any Security in global form in the
manner and upon written instructions given by the person or persons specified in
such Security or by the Company. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form after the
original issuance of the Securities of such series shall be in writing but need
not comply with Section 16.04 and need not be accompanied by an Opinion of
Counsel.
Unless otherwise specified pursuant to Section 2.01, payment of
principal of and any premium and any interest on any Security in global form
shall be made to the person or persons specified therein.
The owners of beneficial interests in any global Security shall have
no rights under this Indenture with respect to any global Security held on their
behalf by a Depositary, and such Depositary may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the sole holder and
owner of such global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by a Depositary, or impair, as between a
Depositary and its participants in any global Security, the operation of
customary practices governing the exercise of the rights of a holder of a
Security of any series, including, without limitation, the granting of proxies
or other authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action that a holder
is entitled to give or take under this Indenture.
15
Neither the Company, the Trustee nor any Authenticating Agent will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Each Depositary designated pursuant to Section 2.01 for a global
Security must, at the time of its designation and at all times while it serves
as Depositary, be a clearing agency registered under the Securities Exchange Act
of 1934, as amended, and any other applicable statute or regulation
Section 2.03. Denominations of and payment of interest on
Securities. The Securities of each series shall be issuable as fully registered
Securities without coupons in such denominations as shall be specified as
contemplated by Section 2.01. In the absence of any such provisions with respect
to the Securities of any series, the Securities of such series shall be issuable
in denominations of $1,000 and integral multiples of $1,000 in excess thereof.
If the Securities of any series shall bear interest, each Security
of such series shall bear interest from the applicable date at the rate or rates
per annum, and such interest shall be payable on the dates, specified on, or
determined in the manner provided for in, the Security. The person in whose name
any Security is registered at the close of business on any record date (as
hereinbelow defined) for the Security with respect to any interest payment date
for such Security shall be entitled to receive the interest payable thereon on
such interest payment date notwithstanding the cancellation of such Security
upon any registration of transfer, exchange or conversion thereof subsequent to
such record date and prior to such interest payment date, unless such Security
shall have been called for redemption on a date fixed for redemption subsequent
to such record date and prior to such interest payment date, or unless the
Company shall default in the payment of interest due on such interest payment
date on such Security, in which case such defaulted interest shall be paid to
the person in whose name such Security (or any Security or Securities issued
upon registration of or exchange thereof) is registered at the close of business
on the record date for the payment of such defaulted interest, or except as
otherwise specified as contemplated by Section 2.01. The term "record date" as
used in this Section with respect to any regular interest payment date for any
Security shall mean such day or days as shall be specified as contemplated by
Section 2.01; provided, however, that in the absence of any such provisions with
respect to any Security, such term shall mean: (1) the last day of the calendar
month next preceding such interest payment date if such interest payment date is
the fifteenth day of a calendar month; or (2) the fifteenth day of the calendar
month next preceding such interest payment date if such interest payment date is
the first day of a calendar month; provided, further, that (except as otherwise
specified as contemplated by Section 2.01) if the day which would be the record
date as provided herein is not a Business Day, then it shall mean the Business
Day next preceding such day. Such term, as used in this Section, with respect to
the payment of any defaulted interest on any Security shall mean (except as
otherwise specified as contemplated by Section 2.01) the fifth day next
preceding the date fixed by the Company for the payment of defaulted interest,
established by notice given by first class mail by or on behalf of the Company
to the holder of such Security not less than 10 days preceding such record date,
or, if such fifth day is not a Business Day, the Business Day next preceding
such fifth day.
Section 2.04. Execution of Securities. The Securities shall be
signed on behalf of the Company, manually or in facsimile, by its Chairman of
the Board or any Vice Chairman of the Board, or its President or any Vice
Chairman or any Executive Vice President, the Chief Operating Officer or the
Chief Financial Officer of the Company and by its Treasurer or an Assistant
Treasurer, the Controller or its Secretary or an Assistant Secretary under its
corporate seal, which may be affixed thereto or printed,
16
engraved or otherwise reproduced thereon, by facsimile or otherwise. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form recited herein, executed by or on behalf of the Trustee manually by
an authorized officer, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Company shall be conclusive evidence that the Security
so authenticated has been duly authenticated and delivered hereunder and that
the holder is entitled to the benefits of this Indenture. Typographical or other
errors or defects in the seal or facsimile signature on any Security or in the
text thereof shall not affect the validity or enforceability of such Security if
it has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities, manually or in facsimile, shall cease to be such officer before the
Securities so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company, such Securities nevertheless may be authenticated
and delivered or disposed of as though the person who signed such Securities had
not ceased to be such officer of the Company; and any Security may be signed on
behalf of the Company, manually or in facsimile, by such persons as, at the
actual date of the execution of such Security, shall be the proper officers of
the Company, although at the date of the execution of this Indenture any such
person was not such officer.
Section 2.05. Registration, transfer and exchange of Securities.
Securities of any series (other than a global Security, except as set forth
below) may be exchanged for a like aggregate principal amount of Securities of
the same series of the same tenor and terms of other authorized denominations.
Securities to be exchanged shall be surrendered at the offices or agencies to be
maintained by the Company in accordance with the provisions of Section 4.02 and
the Company shall execute and the Trustee shall authenticate and deliver, or
cause to be authenticated and delivered, in exchange therefor the Security or
Securities which the Securityholder making the exchange shall be entitled to
receive.
The Company shall keep, at one of the offices or agencies to be
maintained by the Company in accordance with the provisions of Section 4.02 with
respect to the Securities of each series, a Register (herein defined as the
"Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall register the Securities of such series and the
transfer of Securities of such series as in this Article provided. Such Register
shall be in written form or in any other form capable of being converted into
written form within a reasonable time. At all reasonable times the Register
shall be open for inspection by the Trustee and any registrar of the Securities
of such series other than the Trustee. Upon due presentment for registration of
transfer of any Security of any series at the offices or agencies of the Company
to be maintained by the Company in accordance with Section 4.02 with respect to
the Securities of such series, the Company shall execute and register and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities of the same series of like tenor and
terms for a like aggregate principal amount of authorized denominations.
Every Security issued upon registration of transfer or exchange of
Securities pursuant to this Section shall be the valid obligation of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Security or Securities surrendered upon registration of such
transfer or exchange.
All Securities of any series presented or surrendered for exchange,
registration of transfer, redemption, conversion or payment shall, if so
required by the Company or any registrar of the Securities of such series, be
accompanied by a written instrument or instruments of transfer, in form
17
satisfactory to the Company and such registrar, duly executed by the registered
holder or by his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required to exchange or register the
transfer of (a) any Securities of any series during a period beginning at the
opening of business fifteen days before the day of the mailing of a notice of
redemption of outstanding Securities of such series and ending at the close of
business on the day of such mailing, or (b) any Securities or portions thereof
called or selected for redemption, except, in the case of Securities called for
redemption in part, the portion thereof not so called for redemption.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in definitive form, a
global Security representing all or a portion of the Securities of a series may
not be transferred, except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
Notwithstanding the foregoing, except as otherwise specified
pursuant to Section 2.01, any global Security shall be exchangeable pursuant to
this Section only as provided in this paragraph. If at any time the Depositary
for the Securities of a series notifies the Company that it is unwilling or
unable to continue as Depositary for the Securities of such series, or if at any
time the Depositary for the Securities of such series shall no longer be
eligible to so act, the Company shall appoint a successor Depositary with
respect to the Securities of such series. If (a) a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such ineligibility (thereby
automatically making the Company's election pursuant to Section 2.01 no longer
effective with respect to the Securities of such series), (b) the beneficial
owners of interests in a global Security are entitled to exchange such interests
for Securities of such series and of the same tenor and terms, as specified
pursuant to Section 2.01, or (c) the Company in its sole discretion determines
that the Securities of any series issued in the form of one or more global
Securities shall no longer be represented by such global Security or Securities,
then without unnecessary delay, but, if appropriate, in any event not later than
the earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such global Security, executed by the Company. On or
after the earliest date on which such interests are or may be so exchanged, such
global Security shall be surrendered by the Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities upon payment by the beneficial owners of such
interest, at the option of the Company, of a service charge for such exchange
and of a proportionate share of the cost of printing such definitive Securities,
and the Trustee shall authenticate and deliver, (a) to each person specified by
the Depositary in exchange for each portion of such global Security, an equal
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of the same tenor and terms as the portion of such
global Security to be exchanged, and (b) to such Depositary a global Security in
a denomination equal to the difference, if any, between the principal amount of
the surrendered global Security and the aggregate principal amount of definitive
Securities delivered to holders thereof; provided, however, that no such
exchanges may occur during a period
18
beginning at the opening of business 15 Business Days before any selection of
Securities of that series to be redeemed and ending on the relevant redemption
date. If a Security is issued in exchange for any portion of a global Security
after the close of business at the office or agency where such exchange occurs
on (i) any record date and before the opening of business at such office or
agency on the relevant interest payment date, or (ii) any record date for the
payment of defaulted interest and before the opening of business at such office
or agency on the related proposed date for payment of defaulted interest, then
interest or default interest, as the case may be, will not be payable on such
interest payment date or proposed date for payment of defaulted interest, as the
case may be, in respect of such Security, but will be payable on such interest
payment date or proposed date for payment of defaulted interest, as the case may
be, only to the person to whom interest in respect of such portion of such
global Security is payable in accordance with the provisions of this Indenture
and such global Security.
Section 2.06. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities of such series (printed or
lithographed) of any denomination and substantially in the form of the
definitive Securities of such series, but with or without a recital of specific
redemption prices or conversion provisions and with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every such temporary
Security shall be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Securities. Without unreasonable delay the Company will execute and deliver to
the Trustee definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange therefor, at
the offices or agencies to be maintained by the Company as provided in Section
4.02 with respect to the Securities of such series, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such series. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series authenticated and delivered hereunder.
Section 2.07. Mutilated, destroyed, lost or stolen Securities. In
case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company, in the case of any mutilated Security
shall, and in the case of any destroyed, lost or stolen Security in its
discretion may, execute, and upon its request the Trustee shall authenticate and
deliver, or cause to be authenticated and delivered, a new Security of the same
series of like tenor and terms in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen. In case any such Security shall have matured or shall be about to
mature, instead of issuing a substituted Security, the Company may pay or
authorize payment of the same (without surrender thereof, except in the case of
a mutilated Security). In every case the applicant for a substituted Security or
for such payment shall furnish to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof. The
Trustee may authenticate any such substituted Security and deliver the same, or
the Trustee or any paying agent of the Company may make any such payment, upon
the written request or authorization of any officer of the Company. Upon the
issue of any substituted Security, 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 reasonable expenses connected therewith
(including the fees and expenses of the Trustee).
19
To the extent permitted by mandatory provisions of law, every
substituted Security issued pursuant to the provisions of this Section in
substitution for any destroyed, lost or stolen Security shall constitute an
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be found at any time, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of the same series duly issued hereunder.
To the full extent legally enforceable, all Securities shall be held
and owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
Section 2.08. Cancellation and destruction of surrendered
Securities. All Securities surrendered for the purpose of payment, redemption,
conversion, exchange, substitution or registration of transfer, shall, if
surrendered to the Company or any agent of the Company or of the Trustee, be
delivered to the Trustee, and the same, together with Securities surrendered to
the Trustee for cancellation, shall be cancelled by it, and no Securities shall
be issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. The Trustee shall dispose of cancelled Securities in
accordance with its customary procedures and deliver a certificate of
disposition thereof to the Company unless by an Officers' Certificate the
Company shall direct that cancelled Securities be returned to it. If the Company
shall purchase or otherwise acquire any of the Securities, however, such
purchase or acquisition shall not operate as a payment, redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the Company, at its option, shall deliver or surrender the same to the Trustee
for cancellation.
Section 2.09. Authenticating Agents. The Trustee may from time to
time appoint one or more Authenticating Agents with respect to one or more
series of Securities, which shall be authorized to act on behalf of the Trustee
and subject to its direction in authenticating and delivering Securities of such
series pursuant hereto in connection with exchanges, registrations of transfer,
redemptions and conversions as fully to all intents and purposes as though any
such Authenticating Agent had been expressly authorized to execute and deliver
Securities of such series, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as though authenticated by the Trustee. Wherever reference is made in
this Indenture to the authentication or delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication or 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 at all times be a
corporation (including a banking association) organized and doing business under
the laws of the United States or any State or territory thereof or of the
District of Columbia, having a combined capital and surplus of at least five
million dollars, authorized under such laws to exercise corporate trust powers
and subject to supervision or examination by federal, state, territorial, or
District of Columbia authorities. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in 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, it shall resign
immediately in the manner and with the effect herein specified in this Section.
20
Any corporation succeeding to the corporate agency business of an
Authenticating Agent shall continue to be an Authenticating Agent, if such
successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may, or at the request of the Company
promptly shall, appoint a successor Authenticating Agent. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
Any Authenticating Agent by the acceptance of its appointment shall
be deemed 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
things the duties to authenticate and deliver Securities of any series for which
it has been appointed an Authenticating Agent it will furnish 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; it is eligible
for appointment as Authenticating Agent under this Section and will notify the
Trustee promptly if it shall cease to be so qualified; and it will indemnify the
Trustee against any loss, liability or expense incurred by the Trustee and will
defend any claim asserted against the Trustee by reason of any acts or failures
to act of the Authenticating Agent but it shall have no liability for any action
taken by it at the specific written direction of the Trustee.
Section 2.10. Deferrals of Interest Payment Dates. If specified as
contemplated by Section 2.01 or Section 2.02 with respect to the Securities of a
particular series, so long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time during the term of
such series, from time to time to defer the payment of interest on such
Securities for such period or periods as may be specified as contemplated by
Section 2.01 (each, an "Extension Period") during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date. No Extension Period shall end on a date other than an
interest payment date. At the end of any such Extension Period the Company shall
pay all interest then accrued and unpaid on the Securities (together with
Additional Sums, Additional Interest, Compounded Interest and Special Interest
thereon, if any, at the rate specified for the Securities of such series to the
extent permitted by applicable law); provided, however, that no Extension Period
shall extend beyond the Stated Maturity of the principal of the Securities of
such series; provided, further, that during any such Extension Period, the
Company shall not, and shall not permit any Subsidiary of the Company to, (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Company's capital
stock (which includes common and preferred stock), or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company that rank pari passu with or junior in
interest to the Securities of such series or
21
make any guarantee payments with respect to any Bear ▇▇▇▇▇▇▇ Guarantee or other
guarantee by the Company of the debt securities of any Subsidiary of the Company
that by their terms rank pari passu or junior in interest to the Securities of
such series (other than (a) dividends or distributions in capital stock; (b) any
declaration of a dividend in connection with the implementation of a Rights
Plan, the issuance of any common stock of any class or series of preferred stock
of the Company under any Rights Plan or the redemption or repurchase of any
rights distributed pursuant to a Rights Plan; (c) payments under any Bear
▇▇▇▇▇▇▇ Guarantee; (d) purchases of common stock related to the issuance of
common stock or rights under any of the Company's benefit plans for its
directors, officers or employees; and (e) payments of interest pursuant to the
EPICS Loan Agreement). Prior to the termination of any such Extension Period,
the Company may further extend the interest payment period, provided that no
Extension Period shall exceed the period or periods specified in such Securities
or extend beyond the Stated Maturity of the principal of such Securities. Upon
termination of any Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Sums, Additional Interest, Compounded
Interest and Special Interest then due on any interest payment date, the Company
may elect to begin a new Extension Period, subject to the above requirements. No
interest shall be due and payable during an Extension Period, except at the end
thereof. The Company shall give the holders of the Securities of such series and
the Trustee notice of its election to begin or extend any such Extension Period
at least five Business Days prior to the next succeeding interest payment date
on which interest on Securities of such series would be payable but for such
deferral or, with respect to the Securities of a series issued to a Bear ▇▇▇▇▇▇▇
Trust so long as such Securities are held by such Bear ▇▇▇▇▇▇▇ Trust prior to
the earlier of (i) the next succeeding date on which Distributions on the
Capital Securities of such Bear ▇▇▇▇▇▇▇ Trust would be payable but for such
deferral, or (ii) the date the Property Trustee of such Bear ▇▇▇▇▇▇▇ Trust is
required to give notice to any securities exchange or other applicable
self-regulatory organization or to holders of such Capital Securities of the
record date or the date such Distributions are payable, but in any event not
less than five Business Days prior to such record date.
The Trustee shall promptly give notice of the Company's election to
begin any such Extension Period to the holders of the outstanding Securities of
such series.
Section 2.11. Right of Set-Off. With respect to the Securities of a
series issued to a Bear ▇▇▇▇▇▇▇ Trust notwithstanding anything to the contrary
in the Indenture, the Company shall have the right to set-off any payment it is
otherwise required to make thereunder in respect of any such Security to the
extent the Company has theretofore made, or is concurrently on the date of such
payment making, a payment under the Bear ▇▇▇▇▇▇▇ Guarantee relating to such
Security or under Section 6.05 of the Indenture.
Section 2.12. Shortening or Extension of Stated Maturity. If
specified as contemplated by Section 2.01 or Section 2.02 with respect to the
Securities of a particular series, the Company shall have the right to (i)
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date not earlier than the first date on which the Company has
the right to redeem the Securities of such Series, and (ii) extend the Stated
Maturity of the principal of the Securities of such series at any time at its
election for one or more periods, but in no event to a date later than the 49th
anniversary of the first interest payment date following the Original Issue Date
of the Securities of such series; provided that, if the Company elects to
exercise its right to extend the Stated Maturity of the principal of the
Securities of such series pursuant to this clause (ii), at the time such
election is made and at the time of extension (A) the Company is not in
bankruptcy, otherwise insolvent or in liquidation, (B) the Company is not in
default in the payment of any interest or principal on such Securities, (C) in
the case of any series of Securities issued to a Bear ▇▇▇▇▇▇▇ Trust such Bear
▇▇▇▇▇▇▇ Trust is not in arrears on
22
payments of Distributions on the Capital Securities issued by such Bear ▇▇▇▇▇▇▇
Trust and no deferred Distributions are accumulated, and (D) such Securities are
rated not less than BBB- by Standard & Poor's Ratings Services or Baa3 by
▇▇▇▇▇'▇ Investors Service, Inc. or the equivalent by any other nationally
recognized statistical rating organization. In the event the Company elects to
shorten or extend the Stated Maturity of the Securities, it shall give notice to
the Trustee, and the Trustee shall give notice of such shortening or extension
to the holders no less than 30 and no more than 60 days prior to the
effectiveness thereof.
Section 2.13. Agreed Tax Treatment. Each Security issued hereunder
shall provide that the Company and, by its acceptance of a Security or a
beneficial interest therein, the holder of, and any Person that acquires a
beneficial interest in, such Security agree that for United States federal,
state and local tax purposes it is intended that such Security constitute
indebtedness.
ARTICLE III
REDEMPTION OF SECURITIES
Section 3.01. Applicability of Article. Securities of any series
which are redeemable prior to Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
2.01 for Securities of any series) in accordance with this Article.
Section 3.02. Mailing of notice of redemption. In case the Company
shall desire to exercise any right to redeem all or, as the case may be, any
part of the Securities of any series pursuant to this Indenture, it shall give
notice of such redemption to holders of the Securities to be redeemed as
hereinafter in this Section provided.
The Company covenants that it will pay to the Trustee or one or more
paying agents, on or before the Business Day next preceding the date fixed for
each redemption of Securities, a sum in cash sufficient to redeem on the
redemption date all the Securities so called for redemption at the applicable
redemption price, together with any accrued interest on the Securities to be
redeemed to the date fixed for redemption.
Notice of redemption shall be given to the holders of Securities to
be redeemed as a whole or in part by mailing by first class mail, postage
prepaid, a notice of such redemption not less than 30 nor more than 60 days
prior to the date fixed for redemption to their last addresses as they shall
appear upon the Register, but failure to give such notice by mailing in the
manner herein provided to the holder of any Security designated for redemption
as a whole or in part, or any defect therein, shall not affect the validity of
the proceedings for the redemption of any other Security.
Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives the notice.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities are to be redeemed or if
the redemption price cannot be calculated prior to the time the notice is
required to be given, the manner of calculation thereof, and shall state that
payment of the redemption price of the Securities or portions thereof to be
redeemed will be made at any of the offices or agencies to be maintained by the
Company in accordance with the provisions of Section
23
4.02 with respect to the Securities to be redeemed, upon presentation and
surrender of such Securities or portions thereof, and that, if applicable,
interest accrued to the date fixed for redemption will be paid as specified in
said notice and on and after said date interest thereon will cease to accrue and
shall also specify, if applicable, the conversion price and the date on which
the right to convert the Securities will expire and that holders must comply
with Article XV hereof in order to convert their Securities. If less than all
the Securities of any series are to be redeemed, the notice of redemption to
each holder shall specify such holder's Securities of such series to be redeemed
as a whole or in part. In case any Security is to be redeemed in part only, the
notice which relates to such Security shall state the portion of the principal
amount thereof to be redeemed (which shall be equal to the minimum authorized
denomination for Securities of such series or any whole multiple thereof), and
shall state that on and after the redemption date, upon surrender of such
Security, the holder will receive the redemption price in respect to the
principal amount thereof called for redemption and, without charge, a new
Security or Securities of the same series of authorized denominations for the
principal amount thereof remaining unredeemed.
In the case of any redemption at the election of the Company, the
Company shall, at least 60 days prior to the date fixed for redemption (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
redemption date, the basis for such redemption and of the principal amount of
Securities of the applicable series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or that is subject to
compliance with conditions provided in the terms of such Securities, the Company
shall furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction or conditions.
If less than all the Securities of any series are to be redeemed,
the Company shall give the Trustee, at least 60 days in advance of the date
fixed for redemption, notice of the aggregate principal amount of Securities of
such series to be redeemed, and thereupon the Trustee shall select, pro rata, by
lot, or in any manner it shall deem fair, the Securities of such series to be
redeemed as a whole or in part and shall thereafter promptly notify the Company
in writing of the particular Securities of such series or portions thereof to be
redeemed. If the Securities of any series to be redeemed consist of Securities
having different dates on which the principal or any installment of principal is
payable or different rates of interest, if any, or different methods by which
interest may be determined or have any other different tenor or terms, then the
Company may, by written notice to the Trustee, direct that Securities of such
series to be redeemed shall be selected from among groups of such Securities
having specified term or terms and the Trustee shall thereafter select the
particular Securities to be redeemed in the manner set forth in the preceding
sentence from among the group of such Securities so specified.
Section 3.03. When Securities called for redemption become due and
payable. If the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities specified in such
notice shall become due and payable on the date and at the place or places
stated in such notice at the applicable redemption price, together, if
applicable, with any interest accrued (including any Additional Sums, Additional
Interest, Compounded Interest or Special Interest) to the date fixed for
redemption, and on and after such date fixed for redemption (unless the Company
shall default in the payment of such Securities at the applicable redemption
price, together with any interest accrued to the date fixed for redemption) any
interest on the Securities or portions of Securities so called for redemption
shall cease to accrue, and, except as provided in Sections 7.05 and 12.04, such
Securities shall cease from and after the date fixed for redemption to be
entitled to any benefit or security under this Indenture, and the holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and any unpaid interest accrued to the date
fixed for redemption.
24
On presentation and surrender of such Securities at said place of payment in
said notice specified, the said Securities or portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with any
interest accrued to the date fixed for redemption; provided, however, that,
except as otherwise specified as contemplated by Section 2.01, any regular
payment of interest becoming due on the date fixed for redemption shall be
payable to the holders of the Securities registered as such on the relevant
record date as provided in Article II hereof. Upon presentation of any Security
which is redeemed in part only, the Company shall execute and the Trustee shall
authenticate and deliver at the expense of the Company a new Security of the
same series of like tenor and terms of authorized denomination in principal
amount equal to the unredeemed portion of the Security so presented; except that
if a global Security is so surrendered, the Company shall execute, and the
Trustee shall authenticate and deliver to the Depositary for such global
Security, without service charge, a global Security in a denomination equal to
and in exchange for the unredeemed portion of the principal of the global
Security so surrendered.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the date fixed for redemption at the rate borne by or prescribed therefor
in the Security, or, in the case of a Security which does not bear interest, at
the rate of interest set forth therefor in the Security to the extent permitted
by law.
Section 3.04. Right of redemption of Securities initially issued to
a Bear ▇▇▇▇▇▇▇ Trust. In the case of the Securities of a series initially issued
to Bear ▇▇▇▇▇▇▇ Trust, except as otherwise specified as contemplated by Section
2.01, the Company, at its option, may redeem such Securities on or after the
date five years after the Original Issue Date of such Securities, in whole at
any time or in part from time to time at a redemption price equal to 100% of the
principal amount thereof together with any unpaid interest accrued, (including
any Additional Sums, Additional Interest, Compounded Interest or Special
Interest) to the date fixed for redemption.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants as follows:
Section 4.01. Payment of principal of and interest on Securities.
The Company will duly and punctually pay or cause to be paid the principal of
and interest, if any, on each of the Securities at the time and places and in
the manner provided herein and in the Securities. Except as otherwise specified
as contemplated by Section 2.01, if the Securities of any series bear interest,
each installment of interest on the Securities of such series may at the option
of the Company be paid (i) by mailing a check or checks for such interest
payable to the person entitled thereto pursuant to Section 2.03 to the address
of such person as it appears on the Register of the Securities of such series or
(ii) by transfer to an account maintained by the Person entitled thereto as
specified in the Register of Securities, provided that proper transfer
instructions have been received by the record date.
Section 4.02. Maintenance of offices or agencies for registration of
transfer, exchange and payment of Securities. So long as any of the Securities
shall remain outstanding, the Company will maintain an office or agency in the
City of New York, State of New York, where the Securities may be presented for
registration, conversion, exchange and registration of transfer as in this
Indenture provided,
25
and where notices and demands to or upon the Company in respect of the
Securities or of this Indenture may be served, and where the Securities may be
presented for payment. In case the Company shall designate and maintain some
office or agency other than the previously designated office or agency, it shall
give the Trustee prompt written notice thereof. In case the Company shall fail
to maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof to the Trustee, presentations
and demands may be made and notices may be served at the principal office of the
Trustee.
In addition to such office or agency, the Company may from time to
time constitute and appoint one or more other offices or agencies for such
purposes with respect to Securities of any series, and one or more paying agents
for the payment of Securities of any series, in such cities or in one or more
other cities, and may from time to time rescind such appointments, as the
Company may deem desirable or expedient, and as to which the Company has
notified the Trustee; provided, however, that no such appointment or rescission
shall in any manner relieve the Company of its obligation to maintain such
office or agency in the Borough of Manhattan, City of New York, where Securities
of such series may be presented for payment.
Section 4.03. Appointment to fill a vacancy in the office of
Trustee. The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
Section 4.04. Duties of Paying Agent. (a) If the Company shall
appoint a Paying Agent other than the Trustee with respect to Securities of any
series, it will cause such Paying Agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section and Section 12.03,
(1) That it will hold all sums held by it as such agent for the
payment of the principal of or interest, if any, on the Securities of such
series (whether such sums have been paid to it by the Company or by any
other obligor on the Securities of such series) in trust for the benefit
of the holders of the Securities entitled to such principal or interest
and will notify the Trustee of the receipt of sums to be so held,
(2) That it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest on the Securities of such
series when the same shall be due and payable, and
(3) That it will at any time during the continuance of any Event of
Default, upon the written request of the Trustee, deliver to the Trustee
all sums so held in trust by it.
(b) Whenever the Company shall have one or more Paying Agents with
respect to the Securities of any series, it will, prior to each due date of the
principal of or any interest on a Security of such series, deposit with a Paying
Agent of such series a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the holders of
Securities entitled to such principal or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
26
(c) If the Company shall act as its own Paying Agent with respect to
the Securities of any series, it will, on or before each due date of the
principal of or any interest on a Security of such series, set aside, segregate
and hold in trust for the benefit of the holder of such Security, a sum
sufficient to pay such principal or interest so becoming due and will notify the
Trustee of such action, or any failure by it or any other obligor on the
Securities of such series to take such action and will at any time during the
continuance of any Event of Default, upon the written request of the Trustee,
deliver to the Trustee all sums so held in trust by it.
(d) Anything in this Section to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtain a satisfaction and discharge
of this Indenture with respect to one or more or all series of Securities
hereunder, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust for such series by it, or any Paying Agent hereunder, as
required by this Section, such sums are to be held by the Trustee upon the trust
herein contained.
(e) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 12.03 and 12.04.
Section 4.05. Further assurances. From time to time whenever
reasonably demanded by the Trustee, the Company will make, execute and deliver
or cause to be made, executed and delivered any and all such further and other
instruments and assurances and take all such further action as may be reasonably
necessary or proper to carry out the intention of or to facilitate the
performance of the terms of this Indenture or to secure the rights and remedies
hereunder of the holders of the Securities of any series.
Section 4.06. Officers' Certificate as to defaults; notices of
certain defaults. The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee on or before September 15 of each year,
beginning with the year 1997, a certificate signed by the Company's principal
executive officer, principal financial officer or principal accounting officer
stating that a review has been made under his or her supervision of the
activities of the Company during such year and of the performance under this
Indenture and, to the best of his or her knowledge, the Company has complied
with all conditions and covenants under this Indenture throughout such year, or
if there has been a default in the fulfillment of any such obligation,
specifying each such default known and the nature and status thereof. For
purposes of this Section, such compliance shall be determined without regard to
any period of grace or requirement of notice provided under this Indenture.
Section 4.07. Waiver of covenants. The Company may omit in any
particular instance to comply with any covenant or condition specifically
contained in this Indenture for the benefit of one or more series of Securities,
if before the time for such compliance the holders of a majority in principal
amount of the Securities of all series affected (all series voting as one class)
at the time outstanding (determined as provided in Section 8.04) shall waive
such compliance in such instance, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect.
Section 4.08. Additional Sums. In the case of the Securities of a
series issued to a Bear ▇▇▇▇▇▇▇ Trust, so long as no Event of Default has
occurred and is continuing and except as otherwise specified as contemplated by
Section 2.01 or Section 2.02, in the event that (i) a Bear ▇▇▇▇▇▇▇ Trust is the
holder of all of the Outstanding Securities of such series, (ii) a Tax Event in
respect of such Bear ▇▇▇▇▇▇▇
27
Trust shall have occurred and be continuing and (iii) the Company shall not have
(a) redeemed the Securities of such series or (b) terminated such Bear ▇▇▇▇▇▇▇
Trust pursuant to the termination provisions of the related Trust Agreement, the
Company shall pay to such Trust (and its permitted successors or assign under
the related Trust Agreement) for so long as such Bear ▇▇▇▇▇▇▇ Trust (or its
permitted successor or assignee) is the registered holder of any Securities of
such series, such additional amounts as may be necessary in order that the
amount of Distributions (including any Additional Amounts (as defined in the
Trust Agreement)), then due and payable by such Bear ▇▇▇▇▇▇▇ Trust on the
related Capital Securities and Common Securities that at any time remain
outstanding in accordance with the terms thereof shall not be reduced as a
result of any additional taxes (the "Additional Sums"). Whenever in this
Indenture or the Securities there is a reference in any context to the payment
of principal of or interest on the Securities, such mention shall be deemed to
include mention of the payments of the Additional Sums provided for in this
paragraph to the extent that, in such context, Additional Sums are, were or
would be payable in respect thereof pursuant to the provisions of this paragraph
and express mention of the payment of Additional Sums (if applicable) in any
provisions hereof shall not be construed as excluding Additional Sums in those
provisions hereof where such express mention is not made, provided, however,
that the deferral of the payment of interest pursuant to Section 2.10 or the
Securities shall not defer the payment of any Additional Sums that may be due
and payable.
Section 4.09. Additional Covenants. The Company covenants and agrees
with each holder of Securities of a series issued to a Bear ▇▇▇▇▇▇▇ Trust that
it will not, and it will not permit any Subsidiary of the Company to, (a)
declare or pay any dividends or distributions on, or redeem purchase, acquire or
make a liquidation payment with respect to, any shares of the Company's capital
stock (which includes common and preferred stock), or (b) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Company that rank pari passu with or junior to the
Securities of such series or make any guarantee payments with respect to any
guarantee by the Company of debt securities of any subsidiary of the Company if
such guarantee ranks pari passu with or junior in interest to the Securities
(other than (a) dividends or distributions in common stock of the Company, (b)
any declaration of a dividend in connection with the implementation of a Rights
Plan or the issuance of stock under any such plan, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under any Bear
▇▇▇▇▇▇▇ Guarantee and (d) purchases of common stock related to the issuance of
common stock under any of the Company's benefit plans for its directors,
officers or employees) if at such time (i) there shall have occurred any event
of which the Company has actual knowledge that (a) with the giving of notice or
the lapse of time or both, would constitute an Event of Default hereunder and
(b) in respect of which the Company shall not have taken reasonable steps to
cure, (ii) the Company shall be in default with respect to its payment of any
obligations under the related Bear ▇▇▇▇▇▇▇ Guarantee or (iii) the Company shall
have given notice of its election to begin an Extension Period as provided
herein and shall not have rescinded such notice, or such period, or any
extension thereof, shall be continuing.
The Company also covenants with each holder of Securities of a
series issued to Bear ▇▇▇▇▇▇▇ Trust (i) to maintain directly or indirectly 100%
ownership of the Common Securities of such Bear ▇▇▇▇▇▇▇ Trust; provided,
however, that any permitted successor of the Company hereunder may succeed to
the Company's ownership of such Common Securities, (ii) not to voluntarily
terminate, wind up or liquidate such Bear ▇▇▇▇▇▇▇ Trust, except (a) in
connection with a distribution of the Securities of such series to the holders
of Capital Securities in liquidation of such Bear ▇▇▇▇▇▇▇ Trust or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the related Trust Agreement and (iii) to use its reasonable efforts, consistent
with the terms and provisions of such Trust
28
Agreement, to cause such Trust to remain classified as a grantor trust and not
an association taxable as a corporation for United States federal income tax
purposes.
The Company also covenants and agrees with each holder of Securities
of a series issued to a Bear ▇▇▇▇▇▇▇ Trust that it will pay all debts and other
obligations (other than with respect to the Capital Securities) and all costs
and expenses of the Bear ▇▇▇▇▇▇▇ Trust (including costs and expenses relating to
the organization of the Bear ▇▇▇▇▇▇▇ Trust, the fees and expenses of the
trustees of such Bear ▇▇▇▇▇▇▇ Trust and the costs and expenses relating to the
operation of the Bear ▇▇▇▇▇▇▇ Trust) and the offering of the Capital Securities
and to pay any and all taxes and all costs and expenses with respect to the
foregoing (other than United States withholding taxes) to which the Bear ▇▇▇▇▇▇▇
Trust might become subject. The foregoing obligations of the Company are for the
benefit of, and shall be enforceable by, any person to whom any such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice thereof. Any such Creditor may enforce such
obligations of the Company directly against the Company and the Company has
irrevocably waived any right or remedy to require that any such Creditor take
any action against the Bear ▇▇▇▇▇▇▇ Trust or any other person before proceeding
against the Company.
ARTICLE V
SECURITYHOLDERS LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
Section 5.01. Company to furnish Trustee information as to the names
and addresses of Securityholders. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee, semiannually not more than 5
days after January 1 and July 1 of each year beginning with July 1997, and at
such other times as the Trustee may request in writing within 30 days after
receipt by the Company of any such request, a list in such form as the Trustee
may reasonably require containing all information in the possession or control
of the Company, or any Paying Agent or any registrar of the Securities of such
series, other than the Trustee, as to the names and addresses of the holders of
Securities of such series obtained (in the case of each list other than the
first list) since the date as of which the next previous list was furnished;
provided, however, that if the Trustee shall be the registrar of the Securities
of such series, no such list need be furnished. Any such list may be dated as of
a date not more than fifteen days prior to the time such information is
furnished or caused to be furnished, and need not include information received
after such date.
Section 5.02. Trustee to preserve information as to the names and
addresses of Securityholders received by it. (a) The Trustee shall preserve, in
as current a form as is reasonably practicable, all information as to the names
and addresses of the holders of Securities of each series (1) contained in the
most recent list furnished to it as provided in Section 5.01 and (2) received by
it in the capacity of Paying Agent or registrar (if so acting). The Trustee may
destroy any list furnished to it as provided in Section 5.01 upon receipt of a
new list so furnished.
(b) In case three or more holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other holders
of Securities of any series or with holders of all Securities with respect to
their rights under this Indenture or under such Securities,
29
and is accompanied by a copy of the form of proxy or other communication which
such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, at its election, either
(1) afford such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection
(a) of this Section, or
(2) inform such applicants as to the approximate number of holders
of Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this
Section, and as to the approximate cost of mailing to such Securityholders
the form of proxy or other communications, if any, specified in such
application.
If the Trustee shall elect not to afford such access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each of the holders of Securities of such series, or all Securities, as
the case may be, whose name and address appear in the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the holders of Securities of such series or
all Securities, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every holder of the Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any Paying Agent nor any registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the holders of Securities in accordance with the provisions of
subsection (b) of this Section, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under said subsection
(b).
(d) If there shall be different Trustees acting hereunder with
respect to separate series of Securities, applicants shall make separate
applications hereunder to each such Trustee, and such Trustees shall
collaborate, if necessary, in acting under this Section.
Section 5.03. Annual and other reports to be filed by Company With
Trustee. (a) The Company covenants and agrees to file with the Trustee within
fifteen days after the Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from
time to
30
time by rules and regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then it
will file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents, and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time by
such rules and regulations.
(c) The Company covenants and agrees to transmit to the holders of
Securities within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in subsection (c) of Section 5.04 with respect
to reports pursuant to subsection (a) of said Section 5.04, such summaries of
any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission.
Section 5.04. Trustee to transmit annual report to Securityholders.
(a) On or before January 15, 1998, and on or before January 15 in every year
thereafter, if and so long as any Securities are outstanding hereunder, the
Trustee shall transmit to the Securityholders as hereinafter in this Section
provided, a brief report dated as of the preceding November 15 with respect to
any of the following events which may have occurred within the previous twelve
(12) months (but if no such event has occurred within such period no report need
be transmitted):
(1) Any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) The creation of or any material change to a relationship which,
with the occurrence of an Event of Default, would create a conflicting
interest within the meaning of the Trust Indenture Act;
(3) The character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities of any series, on any property or
funds held or collected by it as Trustee, except that the Trustee shall
not be required (but may elect) to state such advances if such advances so
remaining unpaid aggregate not more than one-half of one percent of the
principal amount of the Securities of such series outstanding on the date
of such report;
(4) Any change to the amount, interest rate, and maturity date of
all other indebtedness owing by the Company (or by any other obligor on
the Securities) to the Trustee in its individual capacity, on the date of
such report, with a brief description of any property held as collateral
31
security therefor, except indebtedness based upon a creditor relationship
arising in any manner described in paragraph (2), (3), (4), or (6) of
subsection (b) of Section 7.13;
(5) Any change to the property and funds, if any, physically in the
possession of the Trustee (as such) on the date of such report;
(6) Any additional issue of Securities which the Trustee has not
previously reported; and
(7) Any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by it in accordance
with the provisions of Section 6.07.
(b) The Trustee shall transmit to the Securityholders, as
hereinafter provided, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to the provisions of subsection (a) of this
Section (or if such report has not yet been so transmitted, since the date of
execution of this Indenture), for the reimbursement of which it claims or may
claim a lien or charge prior to that of the Securities of any series on property
or funds held or collected by it as Trustee, and which it has not previously
reported pursuant to this subsection, except that the Trustee shall not be
required (but may elect) to report such advances if such advances remaining
unpaid at any time aggregate ten percent or less of the principal amount of
Securities of such series outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail to
all holders of Securities of any series, as the names and addresses of such
holders shall appear upon the Register of the Securities of such series.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange upon which the Securities of any series are listed and also with the
Commission. The Company will notify the Trustee when and as the Securities of
any series become listed on any stock exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01. Events of Default defined. The term "Event of Default"
whenever used herein with respect to Securities of any series shall mean any one
of the following events:
(a) Default in the payment of any installment of interest upon any
of the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days (subject to the
deferral of any due date in the case of an Extension Period); or
32
(b) Default in the payment of all or any part of the principal of
any of the Securities of such series as and when the same shall become due and
payable either at maturity, upon any redemption, by declaration or otherwise; or
(c) Failure on the part of the Company duly to observe or perform in
any material respect any other of the covenants or agreements on the part of the
Company in the Securities or in this Indenture (including any supplemental
indenture or pursuant to any Officers' Certificate as contemplated by Section
2.01) specifically contained for the benefit of the Securities of such series,
for a period of 90 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 not less than 25% in principal amount of the Securities of such
series and all other series so benefited (all series voting as one class) at the
time outstanding under this Indenture a written notice specifying such failure
and stating that such is a "Notice of Default" hereunder; or
(d) The commencement by the Company of a voluntary case under
Chapter 7 or Chapter 11 of the federal Bankruptcy Code or any other similar
state or federal law now or hereafter in effect, or the consent by the Company
to the entry of a decree or order for relief in an involuntary case under any
such law, or the consent by the Company to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or similar official) of the Company or of any substantial part of its property,
or the making by the Company of any general assignment for the benefit of
creditors, or the failure by the Company generally to pay its debts as they
become due; or
(e) The entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Company in an involuntary case
under Chapter 7 or Chapter 11 of the federal Bankruptcy Code or any other
similar state or federal law now or hereafter in effect, or the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property, or the
ordering of a winding-up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 90 days.
If an Event of Default under clauses (a), (b) or (c) above shall
have occurred and be continuing (but, in the case of clause (c), only if the
Event of Default is with respect to less than all series of Securities then
outstanding under this Indenture), unless the principal of all the Securities
shall have already become due and payable, either the Trustee or the holders of
not less than 25% in principal amount of all the then outstanding Securities of
the series as to which such Event of Default under clauses (a), (b) or (c) above
has occurred (each such series voting as a separate class in the case of an
Event of Default under clauses (a) or (b), and all such series voting as one
class in the case of an Event of Default under clause (c)), by notice in writing
to the Company (and to the Trustee if given by Securityholders) may declare the
principal amount (or if Securities of any series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all the Securities of such series, or of all such
series in the case of an Event of Default under clause (c) above, in each case
together with any accrued interest, to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable; provided, however, that in the case of the Securities of a series
issued to a Bear ▇▇▇▇▇▇▇ Trust, if upon an Event of Default, the Trustee or the
holders of at least 25% in principal amount of the outstanding Securities of
that series fail to declare the principal of all the Securities of that series
to be immediately due and payable, the holders of at least 25% in aggregate
liquidation amount of the corresponding series of Capital Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee. If an Event of Default under clauses (c), (d) or (e) above shall have
occurred and be continuing
33
(but, in the case of clause (c), only if the Event of Default is with respect to
all Securities then outstanding under the Indenture), then and in each and every
such case, unless the principal of all the Securities shall have already become
due and payable, either the Trustee or the holders of not less than 25% in
principal amount of all the then outstanding Securities of each series as to
which such Event of Default under clauses (c), (d) or (e) above has occurred
(voting as one class), by notice in writing to the Company (and to the Trustee
if given by Securityholders) may declare the principal amount (or if Securities
of any series arc Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all the
Securities as to which the Event of Default under clauses (c), (d) or (e) above
has occurred, together with any accrued interest, to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything contained in this Indenture or in the
Securities to the contrary notwithstanding; provided, however, that in the case
of the Securities of a series issued to a Bear ▇▇▇▇▇▇▇ Trust, if upon an Event
of Default, the Trustee or the holders of not less than 25% in principal amount
of the outstanding Securities of that series fail to declare the principal of
all the Securities of that series to be immediately due and payable, the holders
of at least 25% in aggregate liquidation amount of the corresponding series of
Capital Securities then outstanding shall have such right by a notice in writing
to the Company and the Trustee. The foregoing provisions, however, are subject
to the condition that if at any time after the principal amount (or specified
portion thereof) of the Securities of any one or more series (or of all the
Securities, as the case may be) shall have been so declared due and payable, and
before any judgment or decree for the payment of moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or upon all the Securities, as
the case may be) and the principal of any and all Securities of such series (or
of any and all the Securities, as the case may be) which shall have become due
otherwise than by declaration (with interest on overdue installments of interest
to the extent permitted by law and on such principal at the rate or rates of
interest borne by, or prescribed therefor in, the Securities of each such series
to the date of such payment or deposit) and the amounts payable to the Trustee
under Section 7.06, and any and all defaults under the Indenture with respect to
Securities of such series (or all Securities, as the case may be), other than
the nonpayment of principal of and any accrued interest on Securities of such
series (or any Securities, as the case may be) which shall have become due by
declaration, shall have been cured, remedied or waived as provided in Section
6.06, then and in every such case the holders of a majority in principal amount
of the Securities of such series (or of all the Securities, as the case may be)
then outstanding and as to which such Event of Default has occurred (such series
or all series voting as one class, if more than one series are so entitled) by
written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences. In the case of Securities issued to a Bear
▇▇▇▇▇▇▇ Trust, should the holders of such Securities fail to annul such
declaration and waive such default, the holders of a majority in aggregate
liquidation preference of related Capital Securities shall have such right; but
no such rescission and annulment shall extend to or shall affect any subsequent
default, or shall impair any right consequent thereon.
In case the Trustee, any holder of Securities or any holder of
Capital Securities shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, such holder of Securities or such holder of
Capital Securities then and in every such case the Company, the Trustee, the
holders of the Securities of such series (or of all the Securities, as the case
may be) and the holders of Capital Securities shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Company and
34
the Trustee, the holders of the Securities of such series (or of all the
Securities, as the case may be) and the holders of Capital Securities shall
continue as though no such proceedings had been taken.
Section 6.02. Covenant of Company to pay to Trustee whole amount due
on Securities or default in payment of interest or principal. The Company
covenants that (1) in case default shall be made in the payment of any
installment of interest on any of the Securities of any series as and when the
same shall become due and payable, and such default shall have continued for a
period of 30 days (subject to the deferral of any due date in the case of an
Extension Period), or (2) in case default shall be made in the payment of all or
any part of the principal of any of the Securities of any series when the same
shall have become due and payable, whether upon maturity of the Securities of
such series or upon any redemption or upon declaration or otherwise, then, upon
demand of the Trustee, the Company will pay to the Trustee, for the benefit of
the holders of the Securities of such series, the whole amount that then shall
have become due and payable on all such Securities of such series for principal
or interest, or both, as the case may be, with interest upon the overdue
principal and installments of interest (to the extent permitted by law) at the
rate or rates of interest borne by or prescribed therefor in the Securities of
such series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a reasonable
compensation to the Trustee, its agents, attorneys and counsel, and any expenses
or liabilities incurred, and all advances made, by the Trustee hereunder other
than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon such
Securities, and collect in the manner provided by law out of the property of the
Company or any other obligor upon such Securities wherever situated the moneys
adjusted or decreed to be payable.
The Trustee shall be entitled and empowered, either in its own name
or as trustee of an express trust, or as attorney-in-fact for the holders of the
Securities of any series, or in any one or more of such capacities (irrespective
of whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) and interest owing and unpaid in respect of the Securities
of such series and to file such other documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for reasonable
compensation of the Trustee, its agents and counsel, and for reimbursement of
all expenses, disbursements and liabilities incurred, and all advances made, by
the Trustee, its agents and counsel, except as a result of its negligence or bad
faith) and of the holders of the Securities of such series allowed in any equity
receivership, insolvency, bankruptcy, liquidation, arrangement, readjustment,
reorganization or any other judicial proceedings relative to the Company or any
other obligor on the Securities or their creditors, or their property. The
Trustee is hereby irrevocably appointed (and the successive respective holders
of the Securities of each series by taking and holding the same shall be
conclusively deemed to have so appointed the Trustee) the true and lawful
attorney-in-fact of the respective holders of the Securities of such series,
with authority to make and file in the respective names of the holders of the
Securities of such series, or on behalf of the holders of the Securities of such
series as a class, any proof of debt, amendment of proof of debt, claim,
petition or other document in any such
35
proceeding and to receive payment of any sums becoming distributable on account
thereof, and to execute any such other papers and documents and to do and
perform any and all such acts and things for and on behalf of such holders of
the Securities, as may be necessary or advisable in the opinion of the Trustee
in order to have the respective claims of the Trustee and of the holders of the
Securities of such series allowed in any such proceedings, and to receive
payment of or on account of such claims and to distribute the same, and any
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.06; provided, however, that nothing herein shall be
deemed to authorize the Trustee to authorize or consent to or vote for or accept
or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of such series
or the rights of any holder thereof, or to authorize the Trustee to vote in
respect of the claim of any holder of Securities of such series in any such
proceeding.
All rights of action and of asserting claims under this Indenture,
or under any of the Securities of any series, may be enforced by the Trustee
without the possession of any of the Securities of such series, or the
production thereof on any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee, shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall be,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel, for the
ratable benefit of the holders of the Securities of such series.
Section 6.03. Application of moneys collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 6.02 shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection, and of
all amounts payable to the Trustee under Section 7.06;
Second: In case the principal of the outstanding Securities in
respect of which moneys have been collected shall not have become due and
be unpaid, to the payment of any interest on such Securities, in the order
of the maturity of the installments of such interest, with interest upon
the overdue installments of interest (so far as permitted by law and to
the extent that such interest has been collected by the Trustee) at the
rate or rates of interest borne by, or prescribed therefor in, such
Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
Third: In case the principal of the outstanding Securities in
respect of which such moneys have been collected shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing
and unpaid upon such Securities for principal and interest, if any, with
interest on the overdue principal and any installments of interest (so far
as permitted by law and to the extent that such interest has been
collected by the Trustee) at the rate or rates of interest borne by, or
prescribed therefor in, such Securities; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon such
Securities, then to the
36
payment of such principal and interest, without preference or priority of
principal over interest, or of interest over principal, or of any
installment of interest over any other installment of interest, or of any
Security over any other Security, ratably to the aggregate of such
principal and accrued and unpaid interest; and
Fourth: To the payment of the remainder, if any, to the Company,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
Section 6.04. Limitation on suits by holders of Securities. No
holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore provided, and
unless also the holders of not less than 25% in principal amount of all the
Securities at the time outstanding (considered as one class) shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.06; it being understood and intended, and being
expressly covenanted by the taker and holder of every Security with every other
taker and holder and the Trustee, that no one or more holders of Securities
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Securities, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Securities. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions in this Indenture, the right of
any holder of any Security to receive payment of the principal of and interest
on such Security, on or after the respective due dates expressed in such
Security (or, in the case of redemption on or after the date fixed for
redemption), or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such holder.
Section 6.05. On Default Trustee may take appropriate action. In
case of an Event of Default hereunder the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law. All
powers and remedies given by this Article to the Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed cumulative and
not exclusive of any thereof or of any other powers and remedies available to
the Trustee or the holders of the Securities, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the
37
Trustee, of any holder of any of the Securities or any holder of Capital
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to the provisions of Section 8.04, every
power and remedy given by this Article or by law to the Trustee, to the
Securityholders or the holders of Capital Securities may be exercised from time
to time, and as often as shall be deemed expedient, by the Trustee, by the
Securityholders or by the holders of Capital Securities, as the case may be.
In the case of Securities of a series issued to a Bear ▇▇▇▇▇▇▇
Trust, any holder of the corresponding series of Capital Securities issued by
such Bear ▇▇▇▇▇▇▇ Trust shall have the right, upon the occurrence of an Event of
Default described in Section 6.01(a) or (b) above, to institute a suit directly
against the Company for enforcement of payment to such holder of principal of
(including premium, if any) and interest (including any Additional Sums,
Additional Interest, Compounded Interest and Special Interest, if any) on the
Securities having a principal amount equal to the aggregate liquidation amount
of such Capital Securities of the corresponding series held by such holder.
Section 6.06. Rights of holders of majority in principal amount of
Securities to direct Trustee and to waive default. The holders of a majority in
principal amount of the Securities of any one or more series or of all the
Securities, as the case may be (voting as one class), at the time outstanding
(determined as provided in Section 8.04) shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to such one or more series; provided, however, that, subject to Section
7.01, the Trustee shall have the right to decline to follow any such direction
if the Trustee being advised by Opinion of Counsel determines that the action so
directed may not lawfully be taken, or if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee, determine that the proceedings
so directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Securityholders of such one or more series not
parties to such direction, and provided further that nothing in this Indenture
shall impair the right of the Trustee to take any action deemed proper by the
Trustee and which is not inconsistent with such direction by such
Securityholders of such one or more series. The holders of a majority in
principal amount of the Securities of all series as to which a default hereunder
has occurred (all series voting as one class) at the time outstanding
(determined as provided in Section 8.04) and, in the case of any Securities of a
series issued to a Bear ▇▇▇▇▇▇▇ Trust, the holders of a majority in aggregate
liquidation amount of the Capital Securities issued by such Bear ▇▇▇▇▇▇▇ Trust,
may waive any past default hereunder with respect to such series and its
consequences, except a default in the payment of the principal of or interest on
any of such Securities or in respect of a covenant or provision hereof which
under Article X cannot be modified or amended without the consent of the holder
of each Security so affected. Upon any such waiver, such default shall cease to
exist and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon. Any such
waiver shall be deemed to be on behalf of the holders of all the Securities of
such series or, in the case of a waiver by holders of Capital Securities issued
by such Bear ▇▇▇▇▇▇▇ Trust, on behalf of all holders of Capital Securities
issued by such Bear ▇▇▇▇▇▇▇ Trust.
Section 6.07. Trustee to give notice of defaults known to it, but
may withhold in certain circumstances. The Trustee shall, within 90 days after
the occurrence of any default hereunder with respect to the Securities of any
series, give to the holders of the Securities of such series in the manner and
to the extent provided in subsection (c) of Section 5.04 with respect to reports
pursuant to subsection (a) of said Section 5.04, notice of such default known to
the Trustee unless such default shall
38
have been cured, remedied or waived before the giving of such notice (the term
"default" for the purposes of this Section being hereby defined to be the events
specified in clauses (c), (d) and (e) of Section 6.01, default in the payment of
the principal of or interest on Securities of any series, and any additional
events specified in the terms of any series of Securities pursuant to Section
2.01, not including any periods of grace provided for therein, and irrespective
of the giving of written notice specified in any such terms, and irrespective of
the delivery of any Officers' Certificate provided for in any such terms);
provided, that, except in the case of default in the payment of the principal of
or interest on any of the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the Board of Directors,
the Executive Committee, or a Trust Committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the holders of the Securities of such series.
Section 6.08. Requirement of an undertaking to pay costs in certain
suits under the Indenture or against the Trustee. 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, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any holder of Securities of
any series, or group of such Securityholders, holding in the aggregate more than
ten percent in principal amount of all the Securities (all series considered as
one class) outstanding; or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or interest on any Security, on
or after the due date expressed in such Security (or in the case of any
redemption, on or after the date fixed for redemption).
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01. Upon Event of Default occurring and continuing,
Trustee shall exercise powers vested in it, and use same degree of care and
skill in their exercise, as a prudent man would use. The Trustee, prior to the
occurrence of an Event of Default and after the curing, remedying or waiving of
all Events of Default which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been cured, remedied or waived) the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affair.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct; provided, however, that
(a) Prior to the occurrence of an Event of Default and after the
curing, remedying or waiving of all Events of Default which may have occurred:
39
(1) The duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture 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 no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) 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 expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture;
(b) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(c) The Trustee shall not be liable 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 Securities pursuant to Section 6.06 relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture;
(d) 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 7.01; and
(e) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
Section 7.02. Reliance on documents, opinions, etc. Except as
otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specially prescribed); and any Resolution
of the Company may be evidenced to the Trustee by a copy thereof certified by
the Secretary or an Assistant Secretary of the Company;
(c) 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 accordance with such written advice or Opinion of
Counsel;
40
(d) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) The Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or document, unless requested in writing to do so
by the holders of Securities pursuant to Section 6.06; provided, however, that
if the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation, is
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a condition
to so proceeding; and provided further, that nothing in this subsection (f)
shall require the Trustee to give the Securityholders any notice other than that
required by Section 6.07. The reasonable expense of every such examination shall
be paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand;
(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) The Trustee shall be under no responsibility for the approval by
it in good faith of any expert for any of the purposes expressed in this
Indenture.
Section 7.03. Trustee not liable for recitals in Indenture or in
Securities. The recitals contained herein and in the Securities (other than the
certificate of authentication on the Securities) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of any of the Securities
or of the proceeds thereof.
Section 7.04. May own Securities. The Trustee or any agent of the
Company or of the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities with the same rights it would have if it were
not Trustee or such agent.
Section 7.05. Moneys received by Trustee to be held in trust without
interest. Subject to the provisions of Section 12.04, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder.
Section 7.06. Trustee entitled to compensation, reimbursement and
indemnity. The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled
41
to, reasonable compensation (which shall not be limited by any provision of law
in regard to the compensation of a trustee of any express trust), and, the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
connection with the acceptance or administration of its trust under this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel and of all persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Company also covenants to indemnify the Trustee and
its agents for, and to hold them harmless against, any loss, liability or
expense incurred without negligence or bad faith on their part and arising out
of or in connection with the acceptance or administration of this trust and
performance of their duties hereunder, including the costs and expenses
(including fees and disbursements of their counsel) of defending themselves
against any claim or liability in connection with the exercise or performance of
any of the powers or duties hereunder. The obligations of the Company under this
Section to compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture and the resignation or removal of the Trustee.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of or interest, if any,
on particular Securities.
Section 7.07. Right of Trustee to rely on Officers' Certificate
where no other evidence specifically prescribed. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such Certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions of
this Indenture upon the faith thereof.
Section 7.08. Disqualification; conflicting interests. If the
Trustee has or shall acquire any conflicting interest, within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture. To the extent permitted by such Act,
the Trustee shall not be deemed to have a conflicting interest by virtue of
being a trustee under any Trust Agreement.
Section 7.09. Requirements for eligibility of Trustee. The Trustee
hereunder shall at all times be a corporation organized and doing business under
the laws of the United States or any State or territory thereof or of the
District of Columbia authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal, state, territorial, or District of
Columbia authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 7.10. Neither the Company, any other
obligor upon the Securities, nor any person directly or indirectly controlling,
controlled by, or under common control with the Company or any such obligor
shall serve as Trustee under this Indenture.
42
Section 7.10. Resignation of Trustee. (a) The Trustee, or any
trustee or trustees hereafter appointed, may at any time resign with respect to
one or more or all series of Securities by giving written notice of such
resignation to the Company and by giving to the holders of Securities of the
applicable series notice thereof in the manner and to the extent provided in
subsection (c) of Section 5.04 with respect to reports pursuant to subsection
(a) of Section 5.04. Upon receiving such notice of resignation and if the
Company shall deem it appropriate evidence satisfactory to it of such mailing,
the Company shall promptly appoint a successor Trustee with respect to the
applicable series (it being understood that any successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and at any time there shall be only one Trustee with respect to the Securities
of any particular series) by written instrument, in duplicate, executed pursuant
to a Resolution of the Company, one copy of which instrument shall be delivered
to the resigning Trustee and one copy to the successor Trustee. If no successor
Trustee shall have been so appointed with respect to any series and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 6.08,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor Trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a successor
Trustee.
(b) In case at any time any of the following shall occur:
(1) The Trustee shall fail to comply with the provisions of Section
7.08 after written request therefor by the Company or by any Securityholder who
has been a bona fide holder of a Security or Securities of the applicable series
for at least six months, unless the Trustee's duty to resign is stayed as
provided in Section 310(b) of the Trust Indenture Act, or
(2) The Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder, or
(3) The Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, the Company may remove the Trustee with respect to the
applicable series and appoint a successor Trustee with respect to the applicable
series by written instrument, in duplicate, executed pursuant to a Resolution of
the Company, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to the provisions of
Section 6.08, any Securityholder who has been a bona fide holder of a Security
or Securities of the applicable series 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 with respect to the applicable series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor Trustee.
(c) The holders of a majority in principal amount of the Securities
of any one series voting as a separate class or all series voting as one class
at the time outstanding (determined as provided in Section 8.04) may at any time
remove the Trustee with respect to the applicable series or all series, as
43
the case may be, and appoint a successor Trustee with respect to the applicable
series or all series, as the case may be, by written instrument or instruments
signed by such holders or their attorneys-in-fact duly authorized, or by the
affidavits of the permanent chairman and secretary of a meeting of the
Securityholders evidencing the vote upon a resolution or resolutions submitted
thereto with respect to such removal and appointment (as provided in Article
IX), and by delivery thereof to the Trustee so removed, to the successor Trustee
and to the Company.
(d) Any resignation or removal of the Trustee and any appointment of
a successor Trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 7.11.
Section 7.11. Acceptance by successor Trustee. Any successor Trustee
with respect to all series of Securities appointed as provided in Section 7.10
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee with respect to all series
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as Trustee herein; but, nevertheless, on the
written request of the Company or of the successor Trustee, the Trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the provisions
of Section 7.06, execute and deliver an instrument transferring to such
successor Trustee all the rights and powers with respect to such series of the
Trustee so ceasing to act. Upon the request of any such successor Trustee, the
Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor Trustee all such rights
and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon
all property or funds held or collected by such Trustee or any successor Trustee
to secure any amounts then due it pursuant to the provisions of Section 7.06.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
such series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of such series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of such
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental Indenture shall
constitute such Trustees co-Trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of such series to which
the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such
44
retiring Trustee hereunder with respect to the Securities of such series to
which the appointment of such successor Trustee relates.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall be
qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09.
Upon acceptance of appointment by a successor Trustee as provided in
this Section, the successor Trustee shall at the expense of the Company transmit
notice of the succession of such Trustee hereunder to the holders of Securities
of any applicable series in the manner and to the extent provided in subsection
(c) of Section 5.04 with respect to reports pursuant to subsection (a) of said
Section 5.04.
Section 7.12. Successor to Trustee by merger, consolidation or
succession to business. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be qualified under the provisions of
Section 7.08 and eligible under the provisions of Section 7.09, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee or
to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
Section 7.13. Limitations on rights of Trustee as a creditor to
obtain payment of certain claims within three months prior to default or during
default, or to realize on property as such creditor thereafter. (a) Subject to
the provisions of subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company or of any other obligor on the Securities within three months prior to a
default, as defined in subsection (c) of this Section, or subsequent to such a
default, then, unless and until such default shall be cured, the Trustee shall
set apart and hold in a special account for the benefit of the Trustee
individually, the holders of the Securities of the one or more indenture
securities (as defined in subsection (c) of this Section):
(1) An amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected alter the beginning of such three months' period, and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default;
and
45
(2) All property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) To retain for its own account (i) payments made on account of
any such claim by any person (other than the Company) who is liable
thereon, (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third person, and (iii) distributions made in cash,
securities, or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to title 11 of the United States Code or applicable state laws;
(B) To realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three months' period;
(C) To realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such
three months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received, the
Trustee had no reasonable cause to believe that a default, as defined in
subsection (c) of this Section, would occur within three months; or
(D) To receive payment on any claim referred to in paragraph (B) or
(C) against the release of any property held as security for such claim as
provided in such paragraph (B) or (C), as the case may be, to the extent
of the fair value of such property.
For the purposes of paragraphs (B), (C), and (D), property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and to the extent that any claim referred to in any such paragraphs is created
in renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the holders of Securities of the one or more series for
which it is acting as Trustee, and the holders of other indenture securities in
such manner that the Trustee, such Securityholders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to title 11 of the
United States Code or applicable state law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anytime
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claim's of the
Trustee, such Securityholders, and the holders of other indenture securities
dividends on claims filed against the
46
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to title 11 of the United States Code or applicable state law, but
after crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim in bankruptcy or receivership or in
proceedings for reorganization pursuant to title 11 of the United States Code or
applicable state law, whether such distribution is made in cash, securities, or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee, such Securityholders, and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and the proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, such Securityholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claim, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) The receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
trustee, occurred after the beginning of such three months' period; and
(ii) Such receipt of property or reduction of claim occurred within
three months after such resignation or removal;
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) The ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) Advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien of
this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Securityholders at the time
and in the manner provided in Section 5.04(c) with respect to reports
pursuant to subsections (a) and (b) thereof, respectively;
47
(3) Disbursements made in the ordinary course of business in the
capacity of Trustee under an indenture, transfer agent, registrar,
custodian, Paying Agent, fiscal agent or depositary, or other similar
capacity;
(4) An indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section;
(5) The ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the
Company; or
(6) The acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper as defined in subsection (c)
of this Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make payment in
full of the principal of or interest upon any of the Securities or upon
the other indenture securities when and as such principal or interest
becomes due and payable.
(2) The term "other indenture securities" shall mean securities upon
which the Company is an obligor (as defined in the Trust Indenture Act of
1939, as amended) outstanding under any other indenture (A) under which
the Trustee is also trustee, (B) which contains provisions substantially
similar to the provisions of subsection (a) of this Section, and (C) under
which a default exists at the time of the apportionment of the funds and
property held in said special account.
(3) The term "cash transaction" shall mean any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft, ▇▇▇▇ of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise, or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, ▇▇▇▇ of exchange, acceptance or
obligation.
(5) The term "Company" shall mean any obligor upon the Securities.
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ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
Section 8.01. Evidence of action by Securityholders. Whenever in
this Indenture it is provided that the holders of a specified percentage in
principal amount of the Securities of any or all series may take any action
(including the making of any demand or request, the giving of any notice,
consent, or waiver or the taking of any other action), the fact that at the time
of taking any such action the holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by such Securityholders in person or by agent or proxy
appointed in writing, or (b) by the record of such holders of Securities voting
in favor thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of Article IX, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders.
If there shall be more than one Trustee acting hereunder with
respect to separate series of Securities, such Trustees shall collaborate, if
necessary, in acting under Article IX and in determining whether the holders of
a specified percentage in principal amount of the Securities of any or all
series have taken any such action.
Section 8.02. Proof of execution of instruments and of holding of
Securities. Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof of
the execution of any instrument by a Securityholder or his agent or proxy and
proof of the holding by any person of any of the Securities shall be sufficient
if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
The ownership of Securities of any series shall be proved by the
Register of such Securities of such series, or by certificates of the Security
registrar or registrars thereof.
The Trustee shall not be bound to recognize any person as a
Securityholder unless and until the title to the Securities held by him is
proved in the manner in this Article VIII provided.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 9.06.
The Trustee may accept such other proof or require such additional
proof of any matter referred to in this Section as it shall deem reasonable.
Section 8.03. Who may be deemed owners of Securities. Prior to due
presentment for registration of transfer of any Security, the Company, the
Trustee and any agent of the Company or the Trustee may deem and treat the
person in whose name such Security shall be registered upon the Register of
Securities of the series of which such Security is a part as the absolute owner
of such Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or an account of the principal of and interest,
subject to Section 2.03, on such Security and for all other purposes; and
neither the Company nor the Trustee nor any agent of the Company or the Trustee
shall be affected by any notice to the contrary. All
49
such payments so made to any such holder for the time being, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such Security.
Section 8.04. Securities owned by Company or controlled or
controlling persons disregarded for certain purposes. In determining whether the
holders of the requisite principal amount of Securities have concurred in any
demand, direction, request, notice, vote, consent, waiver or other action under
this Indenture, Securities which are owned by the Company or any other obligor
on the Securities or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination, provided that for the
purposes of determining whether the Trustee shall be protected in relying on any
such demand, direction, request, notice, vote, consent, waiver or other action,
only Securities which a Responsible Officer of the Trustee assigned to its
principal office knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as outstanding for the
purposes of this Section, if the pledgee shall establish to the satisfaction of
the Trustee the pledgee's right to vote such Securities and that the pledgee is
not a person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company or any such other obligor. Upon
request of the Trustee, the Company shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Company to be owned or held by or for the account of the Company or any
other obligor on the Securities or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Securities; and, subject to the provisions
of Section 7.01, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are outstanding for the purpose of
any such determination.
Section 8.05. Instruments executed by Securityholders bind future
holders. At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the holders of the
percentage in principal amount of the Securities specified in this Indenture in
connection with such action, any holder of a Security which is shown by the
evidence to be included in the Securities the holders of which have consented to
such action may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid any such action taken by
the holder of any Security and any direction, demand, request, notice, waiver,
consent, vote or other action of the holder of any Security which by any
provisions of this Indenture is required or permitted to be given shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in lieu thereof or upon
registration of transfer thereof, irrespective of whether any notation in regard
thereto is made upon such Security. Any action taken by the holders of the
percentage in principal amount of the Securities of any or all series specified
in this Indenture in connection with such action shall be conclusively binding
upon the Company, the Trustee and the holders of all of the Securities of such
series subject, however, to the provisions of Section 7.01.
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ARTICLE IX
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes for which meeting, 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 the provisions of this Article for any of the following
purposes:
(1) To give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by holders of Securities of any or all series, as the case may
be, pursuant to any of the provisions of Article VI;
(2) To remove the Trustee and appoint a successor Trustee pursuant
to the provisions of Article VII;
(3) To consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) To take any other action authorized to be taken by or on behalf
of the holders of any specified principal amount of the Securities of any
or all series, as the case may be, under any other provision of this
Indenture or under applicable law.
Section 9.02. Manner of calling meetings. The Trustee may at any
time call a meeting of Securityholders to take any action specified in Section
9.01, to be held at such time and at such place in the Borough of Manhattan,
City of New York as the Trustee shall determine. Notice of every meeting of
Securityholders setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be mailed not less
than 20 nor more than 60 days prior to the date fixed for the meeting.
Section 9.03. Call of meeting by Company or Securityholders. In case
at any time the Company, pursuant to a resolution of its Board of Directors, or
the holders of not less than ten percent in principal amount of the Securities
of any or all series, as the case may be, then outstanding, shall have requested
the Trustee to call a meeting of holders of Securities of any or all series, as
the case may be, to take any action authorized in Section 9.01 by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have mailed notice of such meeting within
20 days after receipt of such request, then the Company or such holders of
Securities in the amount above specified may determine the time and place in the
Borough of Manhattan, City of New York for such meeting and may call such
meeting to take any action authorized in Section 9.01, by mailing notice thereof
as provided in Section 9.02.
Section 9.04. Who may attend and vote at meetings. To be entitled to
vote at any meeting of Securityholders a person shall (a) be a holder of one or
more Securities with respect to which the meeting is being held, or (b) be a
person appointed by an instrument in writing as proxy by such holder of one or
more Securities. The only persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the persons, entitled to vote
at such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
51
Section 9.05. Regulations may be made by Trustee. Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Securityholders, in
regard to proof of the holding of Securities and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall think fit. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 8.02 and the appointment of any proxy shall be proved in the manner
specified in said Section 8.02; provided, however, that such regulations may
provide that written instruments appointing proxies regular on their face, may
be presumed valid and genuine without the proof hereinabove or in said Section
8.02 specified.
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 Securityholders as provided in Section 9.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities 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;
provided, however, that each holder of Original Issue Discount Securities shall
be entitled to one vote for each $1,000 amount which would be due upon
acceleration of his Original Issue Discount Security on the date of the meeting.
The chairman of the meeting shall have no right to vote other than by virtue of
Securities held by him or instruments in writing as aforesaid duly designating
him as the person to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03
may be adjourned from time to time, and the meeting may be held so adjourned
without further notice.
At any meeting of Securityholders, the presence of persons holding
or representing Securities in principal amount sufficient to take action on the
business for the transaction of which such meeting was called shall constitute a
quorum, but, if less than a quorum is present, the persons holding or
representing a majority in principal amount of the securities represented at the
meeting may adjourn such meeting with the same effect for all intents and
purposes, as though a quorum had been present.
Section 9.06. Manner of voting at meetings and record to be kept.
The vote upon any resolution submitted to any meeting of Securityholders shall
be by written ballots on which shall be subscribed the signatures of the holders
of Securities or of their representatives by proxy and the principal amount or
principal amounts of the Securities 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 in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 9.02. The record shall show the principal amount or
principal amounts of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and
52
secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other 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.
Section 9.07. Exercise of rights of Trustee, Securityholders and
holders of Capital Securities not to be hindered or delayed. Nothing in this
Article contained shall be deemed or construed to authorize or permit, by reason
of any call of a meeting of Securityholders or any rights expressly or impliedly
conferred hereunder to make such call any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee, to the
Securityholders or the holders of Capital Securities under any of the provisions
of this Indenture or of the Securities.
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 10.01. Purposes for which supplemental indentures may be
entered into without consent of Securityholders. The Company, when authorized by
a Resolution of the Company, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto, in form
satisfactory to such Trustee (which shall comply with the provisions of the
Trust Indenture Act of 1939 as then in effect), for one or more of the following
purposes:
(a) To evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company pursuant
to Article XI hereof and to comply with Section 15.07.
(b) To add to the covenants of the Company such further covenants,
restrictions or conditions as the Company and the Trustee shall consider to be
for the protection of the holders of all or any series of Securities (and if
such covenants, restrictions or conditions are to be for the benefit of less
than all series of Securities, stating that such covenants, restrictions or
conditions are expressly being included solely for the benefit of such series),
and to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions or conditions a default or an Event
of Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect to any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default;
(c) To add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons;
(d) To change or eliminate any of the provisions of this Indenture;
provided, however, that any such change or elimination shall become effective
only when there is no Security of any series
53
outstanding created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision;
(e) To establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.02;
(f) To cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provisions contained herein or in any supplemental
indenture, or to make such other provision in regard to matters or questions
arising under this Indenture or any supplemental indenture; provided that such
action shall not adversely affect the interest of the holders of Securities of
any series in any material respect or, in the case of the Securities of a series
issued to a Bear ▇▇▇▇▇▇▇ Trust and for so long as any of the corresponding
series of Capital Securities issued by such Bear ▇▇▇▇▇▇▇ Trust shall remain
outstanding, the holders of such Capital Securities;
(g) To mortgage or pledge to the Trustee as security for the
Securities any property or assets which the Company may desire to mortgage or
pledge as security for the Securities; and
(h) To qualify, or maintain the qualification of, the Indenture
under the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, mortgage, pledge or assignment of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Securities at the time outstanding, notwithstanding
any of the provisions of Section 10.02.
Section 10.02. Modification of Indenture with consent of holders of
a majority in principal amount of Securities. With the consent (evidenced as
provided in Section 8.01) of the holders of not less than a majority in
principal amount of the Securities of all series at the time outstanding
(determined as provided in Section 8.04) affected by such supplemental indenture
(voting as one class), the Company, when authorized by a Resolution of the
Company, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall be in conformity with
the provisions of the Trust Indenture Act of 1939 as then in effect) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Securities of each such
series; provided, however, that no such supplemental indenture shall (i) change
the fixed maturity of any Securities, or reduce the rate or extend the time of
payment of any interest thereon, or reduce the principal amount thereof, or
change the provisions pursuant to which the rate of interest on any Security is
determined if such change could reduce the rate of interest thereon, or reduce
the minimum rate of interest thereon, or reduce any amount payable upon any
redemption thereof, or adversely affect any right to convert the Securities in
accordance herewith, or reduce the amount to be paid at maturity or upon
redemption, or make the principal thereof or any interest thereon or on any
overdue principal amount payable in any coin or currency other than that
provided in the Security without the consent of
54
the holder of each Security so affected, (ii) reduce the aforesaid percentage of
Securities, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of all Securities
then Outstanding, or (iii) modify any of the provisions of this Section, Section
4.07 or Section 6.06, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the holder of each Security affected thereby or (iv) modify the
provisions of Article XIV with respect to the subordination of outstanding
Securities of any series in a manner adverse to the holders thereof, without the
consent of the holder of each Security so affected, provided that, in the case
of the Securities of a series issued to a Bear ▇▇▇▇▇▇▇ Trust, so long as any of
the corresponding series of Capital Securities issued by such Bear ▇▇▇▇▇▇▇ Trust
remains outstanding, (i) no such amendment shall be made that adversely affects
the holders of such Capital Securities in any material respect (including any
amendment which would result in a Bear ▇▇▇▇▇▇▇ Trust being classified as other
than a grantor trust for United States federal income taxes), and no termination
of this Indenture shall occur, and no waiver of any Event of Default with
respect to such series or compliance with any covenant with respect to such
series under this Indenture shall be effective, without the prior consent of the
holders of at least a majority of the aggregate liquidation preference of such
Capital Securities then outstanding unless and until the principal (and premium,
if any) of the Securities of such series and all accrued and unpaid interest
(including any Additional Sums, Additional Interest, Compounded Interest or
Special Interest, if any) thereon have been paid in full; and (ii) no amendment
shall be made to Section 6.05 of this Indenture that would impair the rights of
the holders of Capital Securities provided therein without the prior consent of
the holders of each Capital Security then outstanding. unless and until the
principal (and premium, if any) of the Securities of such series and all accrued
and unpaid interest (including any Additional Sums, Additional Interest,
Compounded Interest and Special Interest) thereon have been paid in full.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities or Capital
Securities, or which modifies the rights of holders of Securities or holders of
Capital 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 or holders of Capital Securities of any other series.
Upon the request of the Company, accompanied by a copy of a
Resolution of the Company certified by the Secretary or an Assistant Secretary
of the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall mail a notice to the holders of Securities of each series so affected,
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
55
Section 10.03. Effect of supplemental indentures. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Securities shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
The Trustee shall be entitled to receive, and subject to the
provisions of Section 7.01 shall be entitled to rely upon, an Opinion of Counsel
as conclusive evidence that any such supplemental indenture complies with the
provisions of this Article 10.
Section 10.04. Securities may bear notation of changes by
supplemental indentures. Securities authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article, or after any action taken at a Securityholders' meeting pursuant to
Article IX, may bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture or as to any action taken at any
such meeting. If the Company or the Trustee shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Board of
Directors of the Company, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities then outstanding.
Section 10.05. Revocation and effect of Consents. Subject to Section
8.05, until an amendment, supplement, waiver or other action becomes effective,
a consent to it by a Securityholder of a Security is a continuing consent
conclusive and binding upon such Securityholder and every subsequent
Securityholder of the same Security or portion thereof, and of any Security
issued upon the registration of transfer thereof or in exchange therefor or in
place thereof, even if notation of the consent is not made on any such Security.
Subject to Section 8.05, any such Securityholder or subsequent Securityholder
may not revoke the consent as to his Security or portion of a Security.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Securityholders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Securityholders
at such record date (or their duly designated proxies), and only such Persons,
shall be entitled to consent or revoke such consent to such amendment,
supplement or waiver, whether or not such Persons continue to be Securityholders
after such record date. No such consent shall be valid or effective for more
than 180 days after such record date.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Securityholder.
ARTICLE XI
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.01. Company may consolidate, etc., on certain terms. The
Company covenants that it will not merge or consolidate with any other
corporation or sell or convey all or
56
substantially all of its assets to any person, firm or corporation, unless (i)
either the Company shall be the continuing corporation, or the successor
corporation (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof or
the District of Columbia and such corporation shall expressly assume the due and
punctual payment of the principal of and interest on all the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by the
Company by supplemental indenture in form satisfactory to the Trustee, executed
and delivered to the Trustee by such corporation, (ii) the Company or such
successor corporation, as the case may be, shall not, immediately after such
merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition, and (iii) in the case of
Securities of a series issued to a Bear ▇▇▇▇▇▇▇ Trust, such consolidation,
merger, sale or conveyance is permitted under the related Trust Agreement and
Guarantee and does not give rise to any breach or violation of the related Trust
Agreement or Guarantee.
Section 11.02. Successor corporation substituted. In case of any
such consolidation, merger, sale or conveyance and upon any such assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
as the party of the first part. Such successor corporation thereupon may cause
to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Securities issuable hereunder which theretofore shall
not have been delivered to the Trustee; and upon the order of such successor
corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee, and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
Section 11.03. Opinion of Counsel to Trustee. The Trustee shall be
entitled to receive, and subject to the provisions of Section 7.01 shall be
entitled to rely upon, an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale or conveyance and any such assumption, complies
with the provisions of this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 12.01. Satisfaction and discharge of Indenture. If (a) the
Company shall deliver to the Trustee for cancellation all Securities of any
series theretofore authenticated (other than any Securities of such series which
shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.07) and not theretofore cancelled, or (b) all the
Securities of such series not theretofore cancelled or delivered to the Trustee
for cancellation shall have become due
57
and payable, or are by their terms to become due and payable within one year or
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall
deposit with the Trustee as trust funds the entire amount sufficient to pay at
maturity or upon redemption all of such Securities not theretofore cancelled or
delivered to the Trustee for cancellation, including principal and any interest
due or to become due to such date of maturity or redemption date, as the case
may be, and if in either case the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company with respect to Securities of such
series, then this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) remaining rights of registration of
transfer, conversion, substitution and exchange and the Company's right of
optional redemption of Securities of such series, (ii) rights hereunder of
holders to receive payments of principal of and any interest on, the Securities
of such series, and other rights, duties and obligations of the holders of
Securities of such series as beneficiaries hereof with respect to the amounts,
if any, so deposited with the Trustee, and (iii) the rights, obligations and
immunities of the Trustee hereunder), and the Trustee, on demand of the Company,
and at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture. The Company hereby
agrees to compensate the Trustee for any services thereafter reasonably and
properly rendered and to reimburse the Trustee for any costs or expenses
theretofore and thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Securities of such series.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to the Securities of any or all series, the obligations of the
Company to the Trustee under Section 7.06 hereof shall survive.
Section 12.02. Application by Trustee of funds deposited for payment
of Securities. Subject to Section 12.04, all moneys deposited with the Trustee
pursuant to Section 12.01 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the holders of the particular Securities of
such series, for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest.
Section 12.03. Repayment of moneys held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
Securities of any series, all moneys with respect to Securities of such series
then held by any Paying Agent under the provisions of this Indenture shall, upon
demand of the Company, be paid to the Trustee and thereupon such Paying Agent
shall be released from all further liability with respect to such moneys.
Section 12.04. Repayment of moneys held by Trustee. Any moneys
deposited with the Trustee or any Paying Agent for the payment of the principal
of or any interest on any Securities of any series and not applied but remaining
unclaimed by the holders of Securities of such series for two years after the
date upon which such payment shall have become due and payable, shall, at the
request of the Company, be repaid to the Company by the Trustee or by such
Paying Agent; and the holder of any of the Securities of such series entitled to
receive such payment shall thereafter look only to the Company for the payment
thereof; 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 a week for two successive weeks (in each case on any day of
the week) in an Authorized Newspaper, or mailed to the registered holders
thereof, a notice that said moneys have not been so applied and that after
58
a date named therein any unclaimed balance of said money then remaining will be
returned to the Company.
ARTICLE XIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
Section 13.01. Incorporators, stockholders, officers, directors and
employees of Company exempt from individual liability. No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security, or
for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer, director or employee, as such,
past, present or future, of the Company or of 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 personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or any successor
corporation, 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 of the Securities 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, stockholder, 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 of the Securities 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 issue of such Securities.
ARTICLE XIV
SUBORDINATION OF SECURITIES
Section 14.01. Agreement to subordinate. The Company, for itself,
its successors and assigns, covenants and agrees, and each holder of a Security
of any series likewise covenants and agrees by his acceptance thereof, that the
Securities of any series shall be subordinate and junior in right of payment to
all Senior Indebtedness of the Company, and that upon any payment or
distribution of assets of the Company upon any liquidation, dissolution,
winding-up, reorganization, assignment for benefit of creditors, marshaling of
assets or any bankruptcy, insolvency, debt restructurings or similar proceedings
or in connection with any insolvency or bankruptcy proceedings of the Company,
the holders of Senior Indebtedness of the Company shall first be entitled to
receive payment in full of principal of (and premium, if any) and interest, if
any, on such Senior Indebtedness before any payment shall be made on account of
the principal of or interest on any of the Securities. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness of the Company, the holders of the Securities of each series,
together with the holders of any obligations of the Company ranking on a parity
with the Securities, shall be entitled to be paid from the remaining assets of
the Company the amounts at the time due and owing on account of unpaid principal
of and interest on the Securities of any series before any payment or other
distribution, whether in cash, property or otherwise, shall be made on
59
account of any capital stock or any obligations of the Company ranking junior to
the Securities. In addition, in the event of any such proceeding, if any payment
or distribution of assets of the Company of any kind or character, 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 of any series
shall be received by the Trustee or the holders of the Securities of any series
before all Senior Indebtedness of the Company is paid in full, such payment or
distribution shall be held in trust for the benefit of and shall be paid over to
the holders of such Senior Indebtedness of the Company or their representative
or representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness of the Company may
have been issued, ratably, for application to the payment of all Senior
Indebtedness of the Company remaining unpaid until all such Senior Indebtedness
of the Company shall have been paid in full, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness of
the Company. The obligations of the Company in respect of the Securities of all
series shall rank on a parity with any obligations of the Company ranking on a
parity with the Securities. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.06.
The Company shall give prompt written notice to the Trustee of any
insolvency, receivership, conservatorship, reorganization, readjustment of debt,
marshalling of assets and liabilities or similar proceedings or any liquidation
or winding-up of or relating to the Company as a whole, whether voluntary or
involuntary and of any event specified in Section 14.09. The Trustee, subject to
the provisions of Section 7.01, shall be entitled to assume that, and may act as
if, no event referred to in the preceding sentence has occurred unless a
Responsible Officer of the Trustee assigned to the Trustee's Corporate Trustee
Administration Department has received at the principal office of the Trustee
from the Company or any one or more holders of Senior Indebtedness of the
Company or any trustee or representative therefor (who shall have been certified
or otherwise established to the satisfaction of the Trustee to be such a holder
or trustee or representative) written notice thereof. Upon any distribution of
assets of the Company referred to in this Article, the Trustee and holders of
the Securities of each series shall be entitled to rely upon any order or decree
of a court of competent jurisdiction in which proceedings relating to any event
specified in the first sentence of this paragraph are pending for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior 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, and the Trustee, subject to the provisions
of Article VII, and the holders of the Securities of each series shall be
entitled to rely upon a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the holders of the
Securities of each series for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of the Senior 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.
In the absence of any such liquidating trustee, agent or other person, the
Trustee shall be entitled to rely upon a written notice by a Person representing
himself to be a holder of Senior Indebtedness of the Company (or a trustee or
representative on behalf of such holder) as evidence that such Person is a
holder of such Senior Indebtedness (or is such a trustee or representative). 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 of the Company, to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such
Senior Indebtedness held by such Person, as to the extent to which such Person
is entitled to participation in such payment or distribution, and as to other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished,
60
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Section 14.02. Obligation of the Company unconditional. Nothing
contained in this Article or elsewhere in this Indenture is intended to or shall
impair, as between the Company and the holders of the Securities of each series,
the obligation of the Company, which is absolute and unconditional, to pay to
such holders the principal of and interest on such Securities of each series
when, where and as the same shall become due and payable, all in accordance with
the terms of such Securities, or is intended to or shall affect the relative
rights of such holders and creditors of the Company other than the holders of
the Senior Indebtedness of the Company, nor shall anything herein or therein
prevent the Trustee or the holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Indebtedness
of the Company in respect of cash, property, or securities of the Company
received upon the exercise of any such remedy.
Section 14.03. Limitations on duties to holders of Senior
Indebtedness of the Company. With respect to the holders of Senior Indebtedness
of the Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness of the Company shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company, except with respect to moneys
held in trust pursuant to the first paragraph of Section 14.01.
Section 14.04. Notice to Trustee of facts prohibiting payment.
Notwithstanding any of the provisions of this Article or any other provisions of
this Indenture, the Trustee shall not at any time be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until a Responsible Officer of the
Trustee assigned to its Corporate Trustee Administration Department shall have
received at the principal office of the Trustee written notice thereof from the
Company or from one or more holders of Senior Indebtedness of the Company or
from any trustee or representative therefor who shall have been certified by the
Company or otherwise established to the reasonable satisfaction of the Trustee
to be such a holder or trustee or representative; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section 7.01,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that, if prior to the fifth Business Day preceding the date upon which
by the terms hereof any such moneys may become payable for any purpose, or in
the event of the execution of an instrument pursuant to Section 12.01
acknowledging satisfaction and discharge of this Indenture, then if prior to the
second Business Day preceding the date of such execution, the Trustee shall not
have received with respect to such moneys the notice provided for in this
Section, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such moneys and/or apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such date;
provided, however, no such application shall affect the obligations under this
Article of the Persons receiving such moneys from the Trustee.
Section 14.05. Application by Trustee of moneys deposited with it.
Anything in this Indenture to the contrary notwithstanding, any deposit of
moneys by the Company with the Trustee or any agent (whether or not in trust)
for any payment of the principal of or interest on any Securities shall, except
as provided in Section 14.04, be subject to the provisions of Section 14.01.
61
Section 14.06. Subrogation. Subject to the payment in full of all
Senior Indebtedness of the Company, the holders of the Securities of each series
shall be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of assets of the Company applicable to such
Senior Indebtedness until the Securities shall be paid in full, and none of the
payments or distributions to the holders of such Senior Indebtedness to which
the holders of the Securities of any series or the Trustee would be entitled
except for the provisions of this Article or of payments over, pursuant to the
provisions of this Article, to the holders of such Senior Indebtedness by the
holders of such Securities or the Trustee shall, as between the Company, its
creditors other than the holders of such Senior Indebtedness, and the holders of
such Securities, be deemed to be a payment by the Company to or on account of
such Senior Indebtedness; it being understood that the provisions of this
Article are and are intended solely for the purpose of defining the relative
rights of the holders of such Securities, on the one hand, and the holders of
the Senior Indebtedness of the Company, on the other hand.
Section 14.07. Subordination rights not impaired by acts or
omissions of Company or holders of Senior Indebtedness of the Company. No right
of any present or future holders of any Senior Indebtedness of the Company to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof with which any such holder may
have or be otherwise charged. The holders of Senior Indebtedness of the Company
may, at any time or from time to time and in their absolute discretion, change
the manner, place or terms of payment, change or extend the time of payment of,
or renew or alter, any such Senior Indebtedness of the Company, or amend or
supplement any instrument pursuant to which any such Senior Indebtedness of the
Company is issued or by which it may be secured, or release any security
therefor, or exercise or refrain from exercising any other of their rights under
the Senior Indebtedness of the Company including, without limitation, the waiver
of default thereunder, all without notice to or assent from the holders of the
Securities of each series or the Trustee and without affecting the obligations
of the Company, the Trustee or the holders of such Securities under this
Article.
Section 14.08. Authorization of Trustee to effectuate subordination
of Securities. Each holder of a Security of any series, by his acceptance
thereof, authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate, as between the holders
of such Securities and the holders of Senior Indebtedness of the Company, the
subordination provided in this Article. If, in the event of any proceeding or
other action relating to the Company referred to in the first sentence of
Section 14.01, a proper claim or proof of debt in the form required in such
proceeding or action is not filed by or on behalf of the holders of the
Securities of any series prior to fifteen days before the expiration of the time
to file such claim or claims, then the holder or holders of Senior Indebtedness
of the Company shall have the right to file and are hereby authorized to file an
appropriate claim for and on behalf of the holders of such Securities.
Section 14.09. No Payment when Senior Indebtedness in default. In
the event and during the continuation of any default in the payment of principal
of (or premium, if any) or interest on any Senior Indebtedness, or in the event
that any event of default with respect to any Senior Indebtedness shall have
occurred and be continuing and shall have resulted in such Senior Indebtedness
becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable, unless and until such event of default
shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or in the event any judicial
proceeding shall be pending with respect to any such default in payment or such
event or default, then no payment or
62
distribution of any kind or character, whether in cash, properties or securities
shall be made by the Company on account of principal of (or premium, if any) or
interest (including any Additional Sums, Additional Interest, Compounded
Interest and Special Interest), if any, on the Securities or on account of the
purchase or other acquisition of Securities by the Company or any subsidiary.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such holder, then and in such event payment shall be paid over and delivered
forthwith to the Company.
Section 14.10. Right of Trustee to hold Senior Indebtedness of the
Company. The Trustee shall be entitled to all of the rights set forth in this
Article in respect of any Senior Indebtedness of the Company at any time held by
it in its individual capacity to the same extent as any other holder of such
Senior Indebtedness, and nothing in this Indenture shall be construed to deprive
the Trustee of any of its rights as such holder.
Section 14.11. Article XIV not to prevent defaults. The failure to
make a payment pursuant to the terms of Securities of any series by reason of
any provision in this Article shall not be construed as preventing the
occurrence of a default under this Indenture.
ARTICLE XV
CONVERSION OF SECURITIES
Section 15.01. Applicability of Article. Securities of any series
which are convertible into Capital Stock of the Company shall be convertible in
accordance with their terms and (except as otherwise specified as contemplated
by Section 2.01 for Securities of any series) in accordance with this Article.
Section 15.02. Conversion privilege. If Securities of a series are
subject to conversion, as specified pursuant to Section 2.01, then subject to
and upon compliance with the provisions of this Article, at the option of the
holder thereof, any such Security may, at any time until and including, but not
after the close of business on the date specified in such Security, or in case
such Security or some portion thereof shall be called for redemption pursuant to
Section 3.02 prior to such date, then, with respect to such Security or portion
thereof as is so called, until and including, but (if no default is made in
making due provision for the payment of the redemption price) not after, the
close of business on, the date fixed for redemption, be converted, in whole, or
in part in whole multiples of $1,000 principal amount, at 100% of the principal
amount of such Security (or portion thereof), into fully paid and non-assessable
shares of the Company's Capital Stock, as specified in the Security, issuable
upon conversion of the Securities, at the conversion price in effect at the Date
of Conversion (as hereinafter defined).
Section 15.03. Exercise of conversion privilege. In order to
exercise the conversion privilege, the holder of any Security to be converted
shall surrender such Security to the Company at any time during usual business
hours at the offices or agencies to be maintained by the Company in accordance
with the provisions of Section 4.02 with respect to the Securities to be
converted, accompanied by a fully executed written notice, in the form set forth
on the reverse of the Security, that
63
the holder elects to convert such Security or a stated portion thereof
constituting a whole multiple of $1,000 principal amount, and, if such Security
is surrendered for conversion during the period between the close of business on
the record date next preceding the Interest Payment Date (as defined in the
Security) and the opening of business on the Interest Payment Date and has not
been called for redemption on a redemption date within such period (or on such
Interest Payment Date), accompanied also by payment of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of the
Security being surrendered for conversion. Such notice shall also state the name
or names (with address) in which the certificate or certificates for shares of
Capital Stock shall be issued. Securities surrendered for conversion shall (if
so required by the Company or the registrar of such Securities) be duly endorsed
by, or be accompanied by written instrument or instruments of transfer in form
satisfactory to the Company and such registrar duly executed by, the holder or
its attorney duly authorized in writing. As promptly as practicable after the
receipt of such notice and the surrender of such Security as aforesaid, the
Company shall, subject to the provisions of Section 15.09, issue and deliver at
such office or agency to such holder, or to such other person on his written
order, a certificate or certificates for the number of full shares of Capital
Stock issuable on such conversion of Securities in accordance with the
provisions of this Article and cash as provided in Section 15.04, in respect of
any fraction of a share of Capital Stock otherwise issuable upon conversion.
Such conversion shall be deemed to have been effected immediately prior to the
close of business on the date (herein called the "Date of Conversion") on which
such notice shall have been received by the Company and such Security shall have
been surrendered as aforesaid, accompanied (if required by this Section) also by
payment of an amount equal to the interest payable on the next Interest Payment
Date on the principal amount of the Security being surrendered for conversion,
and the person or persons in whose name or names any certificate or certificates
for shares of Capital Stock shall be issuable upon such conversion shall be
deemed to have become on the Date of Conversion the holder or holders of record
of the shares of Capital Stock represented thereby; provided, however, that any
such surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the person or persons in whose name or names the
certificate or certificates for such shares are to be issued as the recordholder
or holders thereof for all purposes at the opening of business on the next
succeeding day on which such stock transfer books are open but such conversion
shall nevertheless be at the conversion price in effect at the close of business
on the date when such Security shall have been so surrendered with the
conversion notice. In the case of conversion of a portion, but less than all, of
a Security, the Company shall execute, and the Trustee shall authenticate and
deliver to the holder thereof, at the expense of the Company, a Security or
Securities in the aggregate principal amount of the unconverted portion of the
Security surrendered. Except as otherwise expressly provided in Section 2.01, no
payment or adjustment shall be made for interest accrued on any Security
converted or for accrued dividends or distributions on any Capital Stock issued
upon conversion of any Security or portion thereof.
Section 15.04. Fractional Interests. No fractions of shares or scrip
representing fractions of shares shall be issued upon conversion of Securities.
If more than one Security shall be surrendered for conversion at one time by the
same holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities so surrendered. If any fraction of a share of Capital Stock would,
except for the provisions of this Section, be issuable on the conversion of any
Security or Securities, the Company shall make payment in lieu thereof in an
amount of United States dollars equal to the value of such fraction computed on
the basis of the current market price of the Capital Stock, rounded to the
nearest cent. The current market price of a share of Capital Stock is the
closing price reported by the New York Stock Exchange consolidated transaction
reporting system for the last trading day before the Date of Conversion. In the
absence of such a quotation, the Company shall determine the current market
price
64
on the basis of such quotation or quotations as it considers appropriate. Any
determination that the Company or the Board of Directors makes regarding
fractional shares shall be conclusive.
Section 15.05. Conversion Price. The conversion price per share of
Capital Stock issuable upon conversion of the Securities shall be as specified
in such Securities.
Section 15.06. Adjustment of Conversion Price. The conversion price
(herein called the "Conversion Price") shall be subject to adjustment from time
to time as follows:
(a) In case the Company shall (1) pay a dividend or make a
distribution in shares of Capital Stock, (2) subdivide its outstanding shares of
Capital Stock into a greater number of shares or (3) combine its outstanding
shares of Capital Stock into a smaller number of shares, the Conversion Price in
effect immediately prior to such action shall be adjusted so that the holder of
any Security thereafter surrendered for conversion shall be entitled to receive
the number of shares of Capital Stock which he would have owned immediately
following such action had such Security been converted immediately prior
thereto. An adjustment made pursuant to this subsection (a) shall become
effective immediately, except as provided in subsection (e) below, after the
record date in the case of a dividend and shall become effective immediately
after the effective date in the case of a subdivision or combination. If after
an adjustment a holder upon conversion of the Capital Stock may receive shares
of two or more classes of Capital Stock of the Company, the Company shall
determine the allocation of the adjusted Conversion Price between the classes of
Capital Stock. After such allocation, the conversion privilege and Conversion
Price of each class of Capital Stock shall thereafter be subject to adjustment
on terms comparable to those set forth in this paragraph.
(b) In case the Company shall issue rights or warrants to all
holders of Capital Stock entitling them (for a period not exceeding 45 days from
the date of such issuance) to subscribe for or purchase shares of Capital Stock
at a price per share less than the current market price per share (as determined
pursuant to subsection (d) below) of the Capital Stock on the record date
mentioned below, the Conversion Price shall be adjusted to a price, computed to
the nearest cent, in accordance with the following formula:
N x P
-----
AP = CP x O + M
----------------
O + N
where:
AP = the adjusted Conversion Price.
CP = the current Conversion Price.
O = the number of shares of Capital Stock outstanding on the
record date for the distribution.
N = the number of additional shares of Capital Stock offered.
P = the offering price per share of the additional shares.
65
M = the current market price per share of Capital Stock on
the record date.
Such adjustment shall become effective immediately, except as provided in
subsection (e) below, after the record date for the determination of holders
entitled to receive such rights or warrants.
(c) In case the Company shall distribute to all holders of Capital
Stock, evidences of indebtedness, equity securities other than Capital Stock or
other assets (other than cash dividends or other distributions to the extent
paid from current or retained earnings of the Company), or shall distribute to
all holders of Capital Stock rights or warrants to subscribe to securities
(other than those referred to in subsection (b) above), then in each such case
the Conversion Price shall be adjusted in accordance with the following formula:
AP = CP x M - F
-------------
M
where:
AP = the adjusted Conversion Price.
CP = the current Conversion Price.
M = the current market price per share of Capital Stock on the
record date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants applicable to one share of
Capital Stock, as determined by the Company.
Such adjustment shall become effective immediately, except as provided in
subsection (e) below, after the record date for the determination of
stockholders entitled to receive such distribution.
(d) For the purpose of any computation under subsections (b) and (c)
above, the current market price per share of Capital Stock on any date shall be
deemed to be the average of the closing price of the Capital Stock reported by
the New York Stock Exchange consolidated transaction reporting system for the 30
consecutive trading days commencing 45 trading days before the date of
determination. In the absence of one or more such quotations, the Company shall
determine the current market price on the basis of such quotations as it
considers appropriate.
(e) In any case in which this Section shall require that an
adjustment be made immediately following a record date, the Company may elect to
defer the effectiveness of such adjustment (but in no event until a date later
than the effective time of the event giving rise to such adjustment), in which
case the Company shall, with respect to any Security converted after such record
date and before such adjustment shall have become effective (i) defer paying any
cash payment pursuant to Section 15.04 or issuing to the holder of such Security
the number of shares of Capital Stock and other capital stock of the Company
issuable upon such conversion in excess of the number of shares of Capital Stock
and other capital stock of the Company issuable thereupon only on the basis of
the Conversion Price prior to adjustment, and (ii) not later than five Business
Days after such adjustment shall have
66
become effective, pay to such holder the appropriate cash payment pursuant to
Section 15.04 and issue to such holder the additional shares of Capital Stock
and other capital stock of the Company issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in such
price; provided that any adjustments which by reason of this subsection (f) are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein provided,
the Company shall promptly (i) file with the Trustee and each conversion agent
an Officers' Certificate setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the correctness of
such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment
to each holder of Securities entitled to the benefits of this Article at his
address as the same appears on the registry books of the Company.
Anything in this Section to the contrary notwithstanding the Company
shall be entitled to make such adjustments in the Conversion Price, in addition
to those required by this Section, and to make any election under Treasury
Regulation ss. 1.305-3(d)(2), as it in its discretion shall determine to be
advisable in order that any stock dividend, subdivision of shares, distribution
of rights or warrants to purchase stock or securities, or distribution of other
assets (other than cash dividends) hereafter made by the Company to its
stockholders shall not be taxable.
Section 15.07. Continuation of conversion privilege in case of
reclassification, change, merger, consolidation or sale of assets. If any of the
following shall occur, namely: (a) any reclassification or change of outstanding
shares of Capital Stock issuable upon conversion of the Securities (other than a
change in par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination), (b) any
consolidation, merger or combination of the Company with another corporation as
a result of which the holders of Capital Stock shall be entitled to receive
stock, other securities or other assets with respect to or in exchange for
Capital Stock or (c) sale or conveyance of all or substantially all of the
property or business of the Company as an entirety as a result of which the
holders of Capital Stock shall be entitled to receive stock, other securities or
other assets with respect to or in exchange for Capital Stock, then the Company
or such successor or purchasing corporation, as the case may be, shall, as a
condition precedent to such reclassification, change, consolidation, merger,
combination, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture (which shall conform to the Trust Indenture Act of 1939
as in force at the date of the execution thereof) providing that the holder of
each Security then outstanding shall have the right to convert such Security
into the kind and amount of shares of stock and other securities and property
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of the number of shares of Capital
Stock issuable upon conversion of such Security immediately prior to such
reclassification, change, consolidation, merger, combination, sale or
conveyance. Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article. If, in the case of any such consolidation, merger,
combination, sale or conveyance, the stock or other securities and property
receivable thereupon by a holder of shares of Capital Stock includes shares of
stock or other securities and property of a corporation other than the successor
or purchasing corporation, as the case may be, in such consolidation, merger,
combination, sale or conveyance, then such supplemental indenture shall also be
executed by
67
such other corporation and shall contain such additional provisions to protect
the interests of the holders of the Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing. The provisions of this
Section shall similarly apply to successive consolidations, mergers,
combinations, sales or conveyances.
Notice of the execution of each such supplemental indenture shall be
mailed to each holder of Securities at his address as the same appears on the
registry books of the Company.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property receivable by holders of Securities upon the
conversion of their Securities after any such reclassification, change,
consolidation, merger, sale or conveyance or to any adjustment to be made with
respect thereto, but, subject to the provisions of Sections 7.01 and 7.02, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers' Certificate (which the Company
shall be obligated to file with the Trustee prior to the execution of such any
supplemental indenture) with respect thereto.
Section 15.08. Notice of certain events. In case:
(a) the Company shall declare a dividend (or any other distribution)
payable to the holders of Capital Stock otherwise than in cash; or
(b) the Company shall authorize the granting to the holders of
Capital Stock of rights to subscribe for or purchase any shares of stock of any
class or of any other rights; or
(c) the Company shall authorize any reclassification or change of
the Capital Stock (other than a subdivision or combination of its outstanding
shares of Capital Stock), or any consolidation or merger to which the Company is
a party and for which approval of any stockholders of the Company is required,
or the sale or conveyance of all or substantially all the property or business
of the Company;
then, the Company shall cause to be filed at the office or agency maintained for
the purpose of conversion of the Securities as provided in Section 4.02, and
shall cause to be mailed to each holder of Securities entitled to the benefits
of this Article, at his address as it shall appear on the registry books of the
Company, at least 20 days before the date hereinafter specified (or the earlier
of the dates hereinafter specified, in the event that more than one date is
specified), a notice stating the date on which (1) a record is expected to be
taken for the purpose of such dividend, distribution or rights, or if a record
is not to be taken, the date as of which the holders of Capital Stock of record
to be entitled to such dividend, distribution or rights are to be determined, or
(2) such reclassification, change, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding-up is expected to become effective and the
date, if any is to be fixed, as of which it is expected that holders of Capital
Stock of record shall be entitled to exchange their shares of Capital Stock for
securities or other property deliverable upon such reclassification, change,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding-up.
Section 15.09. Taxes on conversion. The Company will pay any and all
documentary, stamp or similar taxes payable to the United States of America or
any political subdivision or taxing authority thereof or therein in respect of
the issue or delivery of shares of Capital Stock on conversion of Securities
pursuant thereto; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issue or delivery of shares of Capital
68
Stock in a name other than that of the holder of the Securities to be converted
and no such issue or delivery shall be made unless and until the person
requesting such issue or delivery 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. The Company shall pay no tax that may be payable with respect to any
other taxes imposed in connection with conversion of Securities.
Section 15.10. Company to provide Stock. The Company shall reserve,
free from preemptive rights, out of its authorized but unissued shares of
Capital Stock, sufficient shares to provide for the conversion of the Securities
from time to time as such Securities are presented for conversion, provided,
that nothing contained herein shall be construed to preclude the Company from
satisfying its obligations in respect of the conversion of Securities by
delivery of repurchased shares of Capital Stock which are held in the treasury
of the Company.
If any shares of Capital Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any federal or state law before such shares may be
validly issued or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be, provided, however, that nothing in
this Section shall be deemed to affect in any way the obligations of the Company
to convert Securities into Capital Stock as provided in this Article.
Before taking any action which would cause an adjustment reducing
the Conversion Price below the then par value, if any, of the Capital Stock, the
Company will take all corporate action which may, in the Opinion of Counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable shares of Capital Stock at such adjusted Conversion Price.
The Company covenants that all shares of Capital Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
nonassessable by the Company and free of preemptive rights.
Section 15.11. Disclaimer of responsibility for certain matters.
Neither the Trustee nor any agent of the Trustee shall at any time be under any
duty or responsibility to any holder of Securities to determine whether any
facts exist which may require an adjustment of the Conversion Price, or with
respect to the Officers' Certificate referred to in Section 15.06(g), or with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor any agent
of the Trustee shall be accountable with respect to the validity or value (or
the kind or amount) of any shares of Capital Stock, or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Security; and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any agent of the
Trustee shall be responsible for any failure of the Company to issue, register
the transfer of or deliver any shares of Capital Stock or stock certificates or
other securities or property upon the surrender of any Security for the purpose
of conversion or, subject to Sections 7.01 and 7.02, to comply with any of the
covenants of the Company contained in this Article.
Section 15.12. Return of funds deposited for redemption of converted
Securities. Any funds which at any time shall have been deposited by the Company
or on its behalf with the Trustee or any other Paying Agent for the purpose of
paying the principal of and interest on any of the Securities and which shall
not be required for such purposes because of the conversion of such Securities,
as
69
provided in this Article, shall after such conversion be repaid to the Company
by the Trustee or such other Paying Agent.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.01. Successors and assigns of Company bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
Section 16.02. Acts of board, committee or officer of successor
corporation valid. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer or officers of the Company shall and may be done and performed with like
force and effect by the like board, committee or officer or officers of any
corporation that shall at the time be the lawful sole successor of the Company.
Section 16.03. Required notices or demands may be served by mail.
Any notice or demand which by any provisions of this Indenture is required or
permitted to be given or served by the Trustee, by the holders of Securities or
by the holders of Capital Securities to or on the Company may be given or served
by registered mail postage prepaid addressed (until another address is filed by
the Company with the Trustee for such purpose), as follows: The Bear ▇▇▇▇▇▇▇
Companies Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Secretary.
Any notice, direction, request, demand, consent or waiver by the Company, by any
Securityholder or by any holder of a Preferred Security to or upon the Trustee
shall be deemed to have been sufficiently given, made or filed, for all
purposes, if given, made or filed in writing at the principal office of the
Trustee, Attention: Corporate Trustee Administration Department.
Section 16.04. Officers' Certificate and Opinion of Counsel to be
furnished upon applications or demands by the Company. Upon any request or
application by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture, other than certificates provided pursuant to
Section 4.06, shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
70
Any certificate, statement or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters, upon the certificate, statement 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 possession of the
Company, unless such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are erroneous.
Any certificate, statement or Opinion of an officer of the Company
or of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
Section 16.05. Payments due on Saturdays, Sundays, and holidays.
Except as otherwise specified as contemplated by Section 2.01, in any case where
the date of payment of interest on or principal of the Securities of any series
or the date fixed for any redemption of any Security of any series shall not be
a Business Day, then payment of interest or principal 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 date fixed for the payment of interest on or
principal of the Security or the date fixed for any redemption of any Security
of such series, and no additional interest shall accrue for the period alter
such date and before payment.
Section 16.06. Provisions required by Trust Indenture Act of 1939 to
control. If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed under Sections 310 through 317 of the Trust Indenture Act of
1939, as amended, such duties shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
Section 16.07. Indenture and Securities to be construed in
accordance with the laws of the State of New York. This Indenture and each
Security shall be deemed to be a contract made under the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws of
said State, provided, however, that the rights and duties of the Trustee
hereunder shall be construed in accordance with the laws of the State of the
Trustee's principal place of business.
Section 16.08. Provisions of the Indenture and Securities for the
sole benefit of the parties and the Securityholders. Nothing in this Indenture
or in the Securities, expressed or implied, shall give or be construed to give
any person, firm or corporation, other than the parties hereto and their
successors and assigns and the holders of the Securities, any legal or equitable
right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition and provision herein contained; all its covenants,
conditions and provisions being for the sole benefit of the parties hereto and
their
71
successors and assigns and of the holders of the Securities and, to the extent
expressly provided in Sections 6.01, 6.05, 6.06, 9.07, 10.01 and 10.02, the
holders of Capital Securities.
Section 16.09. Indenture may be executed in counterparts. This
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
Section 16.10. Securities in foreign currencies. Whenever this
Indenture provides for any action by, or any distribution to, holders of
Securities denominated in United States dollars and in any other currency, in
the absence of any provision to the contrary in the form of Security of any
particular series, the relative amount in respect of any Security denominated in
a currency other than United States dollars shall be treated for any such action
or distribution as that amount of United States dollars that could be obtained
for such amount on such reasonable basis of exchange and as of such date as the
Company may specify in a written notice to the Trustee.
The Chase Manhattan Bank, the party of the second part, hereby
accepts the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
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IN WITNESS WHEREOF, The Bear ▇▇▇▇▇▇▇ Companies, Inc., the party of
the first part, has caused this Indenture to be signed by its President and
Chief Executive Officer, and The Chase Manhattan Bank, the party of the second
part, has caused this Indenture to be signed by one of its Vice Presidents, all
as of the day and year first written above.
THE BEAR ▇▇▇▇▇▇▇ COMPANIES INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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President and Chief Executive Officer
THE CHASE MANHATTAN BANK, as Trustee
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Vice President
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