Exhibit 4.1
SYNOVUS FINANCIAL CORP.
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
Trustee
--------------------
INDENTURE
Dated as of June 20, 2005
-----------------------------
5.125% SUBORDINATED NOTES DUE 2017
------------------------------
1
Reconciliation and Tie Sheet*
between
Provisions of the Trust Indenture Act of 1939
and
Indenture, dated as of June 20, 2005
between
SYNOVUS FINANCIAL CORP.
and
THE BANK OF NEW YORK TRUST COMPANY, N.A., Trustee
Section of Act Section of Indenture
-------------- --------------------
310(a)(1), (2)................................. 5.08
310(a)(3), (4)................................. Inapplicable
310(a)(5)...................................... 5.08
310(b)......................................... **
310(c)......................................... Inapplicable
311(a), (b).................................... **
311(c)......................................... Inapplicable
312............................................ **
313(a)......................................... **
313(b)(1)...................................... Inapplicable
313(b)(2)...................................... **
313(c), (d).................................... **
314(a)......................................... **
314(b)......................................... Inapplicable
314(c)(1) and (2).............................. 13.05
314(c)(3)...................................... Inapplicable
314(d)......................................... Inapplicable
314(e)......................................... 13.05
314(f)......................................... Inapplicable
315(a), (c) and (d)............................ 5.01
315(b)......................................... 4.08
315(e)......................................... 4.09
316(a)(1)...................................... 4.01 and 4.07
316(a)(2)...................................... Omitted
316(a) last sentence........................... 6.04
316(b)......................................... 4.04
316(c)......................................... 6.05
317(a)......................................... 4.02
317(b)......................................... 3.03(a)
318(a)......................................... 13.07
------------------------------
* This Reconciliation and Tie-sheet is not a part of the Indenture.
** Included pursuant to Section 318(c) of the Trust Indenture Act of 1939.
2
TABLE OF CONTENTS*
Page
PARTIES............................................................................... 1
RECITALS.............................................................................. 1
ARTICLE ONE DEFINITIONS.............................................................. 1
Section 1.01 Definitions................................................ 1
ARTICLE TWO ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES........ 7
Section 2.01 Form and Dating............................................ 7
Section 2.02 Execution and Authentication............................... 9
Section 2.03 Note Registrar............................................. 10
Section 2.04 Holder Lists............................................... 10
Section 2.05 Global Note Provisions..................................... 11
Section 2.06 Legends.................................................... 12
Section 2.07 Exchange and Registration of Transfer of Notes............. 12
Section 2.08 Mutilated, Destroyed; Lost or Stolen Notes................. 19
Section 2.09 Temporary Notes............................................ 20
Section 2.10 Cancellation of Notes Paid, etc............................ 20
Section 2.11 Payment of Interest; Interest Rights Preserved............. 21
Section 2.12 Add On Notes............................................... 22
Section 2.13 Additional Interest Under Registration Rights Agreement.... 23
ARTICLE THREE PARTICULAR COVENANTS OF THE COMPANY.................................... 23
Section 3.01 Payment of Principal and Interest.......................... 23
Section 3.02 Offices for Notices and Payments, etc...................... 23
Section 3.03 Provisions as to Paying Agent.............................. 24
Section 3.04 Statement as to Compliance................................. 25
Section 3.05 Corporate Existence........................................ 25
ARTICLE FOUR REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON EVENT OF DEFAULT............. 26
Section 4.01 Events of Default.......................................... 26
Section 4.02 Payment of Notes on Default; Suit Therefor................. 28
Section 4.03 Application of Money Collected By Trustee.................. 29
Section 4.04 Proceedings by Noteholders................................. 30
--------------------------
* This table of contents is not part of the Indenture.
i
Section 4.05 Proceedings by Trustee......................................................... 30
Section 4.06 Remedies Cumulative and Continuing; Delay or Omission Not Waiver............... 30
Section 4.07 Direction of Proceedings and Waiver of Defaults by Majority of Noteholders..... 31
Section 4.08 Notice of Defaults............................................................. 31
Section 4.09 Undertaking to Pay Costs....................................................... 32
ARTICLE FIVE CONCERNING THE TRUSTEE...................................................................... 32
Section 5.01 Duties and Responsibilities of Trustee......................................... 32
Section 5.02 Reliance on Documents, Opinions, etc........................................... 33
Section 5.03 No Responsibility for Recitals, etc............................................ 34
Section 5.04 Trustee, Paying Agents or Note Registrar May Own Notes......................... 35
Section 5.05 Money to be Held in Trust...................................................... 35
Section 5.06 Compensation and Expenses of Trustee........................................... 35
Section 5.07 Officers' Certificate as Evidence.............................................. 35
Section 5.08 Eligibility of Trustee......................................................... 36
Section 5.09 Resignation or Removal of Trustee.............................................. 36
Section 5.10 Acceptance by Successor Trustee................................................ 37
Section 5.11 Succession by Merger, etc...................................................... 38
ARTICLE SIX CONCERNING THE NOTEHOLDERS................................................................... 38
Section 6.01 Action by Noteholders.......................................................... 38
Section 6.02 Proof of Execution by Noteholders.............................................. 38
Section 6.03 Who Are Deemed Absolute Owners................................................. 39
Section 6.04 Company Owned Notes Disregarded................................................ 40
Section 6.05 Revocation of Consents; Future Holders Bound................................... 40
ARTICLE SEVEN NOTEHOLDERS' MEETINGS...................................................................... 41
Section 7.01 Purposes of Meetings........................................................... 41
Section 7.02 Call of Meetings by Trustee.................................................... 41
Section 7.03 Call of Meetings by Company or Noteholders..................................... 41
Section 7.04 Qualifications for Voting...................................................... 42
Section 7.05 Regulations.................................................................... 42
Section 7.06 Quorum......................................................................... 43
Section 7.07 Voting......................................................................... 43
Section 7.08 No Delay of Rights by Meeting.................................................. 43
ARTICLE EIGHT SUPPLEMENTAL INDENTURES.................................................................... 44
Section 8.01 Supplemental Indentures Without Consent of Noteholders......................... 44
Section 8.02 Supplemental Indentures with Consent of Noteholders............................ 45
ii
Section 8.03 Compliance with Trust Indenture Act; Effect of Supplemental Indentures......... 45
Section 8.04 Notation on Notes.............................................................. 46
Section 8.05 Evidence of Compliance of Supplemental Indenture to be Furnished Trustee....... 46
ARTICLE NINE CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE........................................... 46
Section 9.01 Company May Consolidate, etc., on Certain Terms................................ 46
Section 9.02 Successor Person Substituted................................................... 47
ARTICLE TEN SATISFACTION AND DISCHARGE OF INDENTURE...................................................... 47
Section 10.01 Discharge of Indenture......................................................... 47
Section 10.02 Deposited Money to be Held in Trust by Trustee................................. 48
Section 10.03 Paying Agent to Repay Money Held............................................... 48
Section 10.04 Return of Unclaimed Money...................................................... 48
Section 10.05 Discharge of Indenture as to Notes............................................. 49
Section 10.06 Repayment to Company of Deposits Made Pursuant to Section 10.05................ 50
Section 10.07 Deposits Irrevocable........................................................... 50
Section 10.08 Reinstatement.................................................................. 50
ARTICLE ELEVEN IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS........................... 52
Section 11.01 Indenture and Notes Solely Corporate Obligations............................... 52
ARTICLE TWELVE SUBORDINATION OF SECURITIES............................................................... 52
Section 12.01 Agreement to Subordinate....................................................... 52
Section 12.02 Obligation of the Company Unconditional........................................ 53
Section 12.03 Notice to Trustee of Facts Prohibiting Payment................................. 53
Section 12.04 Application by Trustee of Moneys Deposited with It............................. 54
Section 12.05 Subrogation to Rights of Holders of Senior Indebtedness........................ 54
Section 12.06 Subordination Rights Not Impaired by Acts or Omissions of Company or Holders
of Senior Indebtedness....................................................... 54
Section 12.07 Authorization of Trustee to Effectuate Subordination of Notes.................. 55
Section 12.08 Right of Trustee to Hold Senior Indebtedness................................... 55
Section 12.09 Article Twelve Not to Prevent Events of Default................................ 55
Section 12.10 Article Applicable to Paying Agents............................................ 55
Section 12.11 Reliance on Judicial Order or Certificate of Liquidating Agent................. 55
Section 12.12 Trustee Not Fiduciary for Holders of Senior Indebtedness....................... 56
Section 12.13 Payment Permitted If No Default................................................ 56
ARTICLE THIRTEEN MISCELLANEOUS PROVISIONS................................................................ 56
Section 13.01 Provisions Binding on Company's Successors..................................... 56
iii
Section 13.02 Official Acts by Successor..................................................... 56
Section 13.03 Addresses for Notices; etc..................................................... 56
Section 13.04 Governing Law.................................................................. 57
Section 13.05 Evidence of Compliance with Conditions Precedent............................... 57
Section 13.06 Legal Holidays................................................................. 57
Section 13.07 Trust Indenture Act to Control................................................. 58
Section 13.08 No Security Interest Created................................................... 58
Section 13.09 Benefits of Indenture.......................................................... 58
Section 13.10 Payments to be Made in U.S. Dollars............................................ 58
Section 13.11 Authenticating Agent........................................................... 58
Section 13.12 Table of Contents, Headings, etc............................................... 59
Section 13.13 Execution in Counterparts...................................................... 59
iv
THIS INDENTURE, dated as of June 20, 2005, is entered into by
SYNOVUS FINANCIAL CORP., a Georgia corporation (such corporation or, subject to
Article Nine, its successors and assigns, the "Company"), and THE BANK OF NEW
YORK TRUST COMPANY, N.A., a national banking association organized under the
federal laws of the United States (such national banking association or, subject
to Article Five, its successors and assigns as Trustee under this Indenture, the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of an unlimited amount of its 5.125%
Subordinated Notes Due 2017, as provided herein, which will be issued initially
in an aggregate principal amount of Four Hundred Fifty Million Dollars
($450,000,000) (together with any Exchange Notes issued therefor and any Add On
Notes (or any Exchange Note issued therefor), in each case as provided herein,
the "Notes"). The Company may authorize the issuance of additional Notes from
time to time, which will have the same terms and will be the same series as the
Notes initially issued pursuant to this Indenture.
For and in consideration of the premises and the purchase of the
Notes by the holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01 DEFINITIONS
The terms defined in this Section 1.01 (except to the extent the
application of such definitions is expressly limited to certain instances, and
except as otherwise expressly provided in this Indenture or unless the context
otherwise requires) for all purposes of this Indenture will have the respective
meanings specified in this Section 1.01. Except as otherwise expressly provided
in this Indenture or unless the context otherwise requires, all other terms used
in this Indenture that are defined in the Trust Indenture Act or that the Trust
Indenture Act defines by reference to the Securities Act of 1933 or by
Commission rule under the Trust Indenture Act will have the meanings assigned to
such terms in the Trust Indenture Act, in such rule thereunder or in such
Securities Act as in force at the date of the execution of this Indenture.
"Add On Notes" has the meaning specified in Section 2.12.
"Agent Member" has the meaning specified in Section 2.05(b).
"Authenticating Agent" (i) means any Person appointed by the Trustee
pursuant to Section 13.11 to act on behalf of the Trustee to authenticate Notes,
and (ii) initially means the Trustee.
1
"Bankruptcy Event of Default" has the meaning specified in Section
4.01.
"Board of Directors" means the board of directors of the Company or,
with respect to any matter, any committee of the Board of Directors duly
authorized to act for the Board of Directors with respect to such matter.
"Business Day" means any day other than a Saturday or Sunday that is
neither a legal holiday nor a day on which banking institutions are authorized
or obligated by law or regulation to close in The City of New York or the city
in which the Corporate Trust Office is located.
"Cede" has the meaning specified in Section 2.01(e).
"Clearstream Luxembourg" has the meaning specified in Section
2.01(e).
"Commission" means 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 Indenture the Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the corporation identified as the Company in the
first paragraph of this Indenture until a successor Person shall succeed to and
be substituted for the Company pursuant to the provisions of Article Nine, and
thereafter shall mean such successor Person.
"Company Order" means a written request or order signed in the name
of the Company by its Chief Executive Officer, any Vice Chairman, its President,
any of its Executive Vice Presidents or any of its Senior Vice Presidents, its
Secretary or any Assistant Secretary, or its General Counsel and delivered to
the Trustee.
"Corporate Trust Office" or any other similar term means the office
of the Trustee at which at any particular time this Indenture shall be
administered, which office, at the date of this instrument, is located at
Towermarc Plaza, 2nd Floor, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Department.
"Defaulted Interest" has the meaning specified in Section 2.11.
"Definitive Note" has the meaning specified in Section 2.05(c).
"Depositary", with respect to the Notes issued in the form of one or
more Global Notes, means the Depository Trust Company, New York, New York, until
a successor Depositary shall have been appointed pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" means or includes each
person who is then a Depositary hereunder.
"Distribution Compliance Period" has the meaning specified in
Section 2.01(e).
2
"Euroclear" has the meaning specified in Section 2.01(e).
"Event of Default" means any event specified in Section 4.01,
continued for the period of time, if any, and after the giving of the notice, if
any, designated in Section 4.01.
"Exchange Note" means any Note issued in a Registered Exchange Offer
in exchange for a like principal amount of Notes originally issued pursuant to
an exemption from registration under the Securities Act, and replacement Notes
issued therefor in accordance with this Indenture and containing terms
substantially identical to the Initial Notes or any Add On Notes, if applicable
(except that (i) such Exchange Notes will be registered under the Securities Act
and will not be subject to transfer restrictions or bear the legends set forth
in Sections 2.06(b) and (c), and (ii) the provisions relating to additional
interest set forth in Section 2.13 will be eliminated).
"Global Note" means any Note issued in fully-registered certificated
form to the Depositary (or its nominee), as depositary for the beneficial owners
thereof, which shall be substantially in the form of Appendix A, with
appropriate legends as specified in Section 2.06 and Appendix A.
"Indenture" means this instrument as originally executed or, if
amended or supplemented as provided in this Indenture, as so amended or
supplemented.
"Initial Purchasers" means Banc of America Securities LLC, Citigroup
Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. or with respect to any Add
On Notes, the initial purchasers (or, if applicable, underwriters) of such Add
On Notes.
"Interest Payment Date", when used with respect to any Note, means
each June 15 and December 15, beginning December 15, 2005, when interest on the
Notes is payable.
"Issue Date" means June 20, 2005.
"Issue Date Notes" means the $450,000,000 aggregate principal amount
of Notes originally issued on the Issue Date in accordance with this Indenture,
and any replacement Notes issued therefor.
"Issue Date Registration Rights Agreement" means the Registration
Rights Agreement, dated as of June 20, 2005, between the Company and the Initial
Purchasers.
"Maturity Date" means June 15, 2017.
"Non-U.S. Beneficial Ownership Certification" has the meaning
specified in Section 2.01(e).
"Note" or "Notes" has the meaning stated in the recital of this
Indenture and means any Note or Notes, as the case may be, authenticated and
delivered pursuant to this Indenture.
3
"Note Custodian" means the custodian with respect to any Global Note
appointed by the Depositary or any successor Person thereto, and shall initially
be the Trustee.
"Note Register" has the meaning specified in Section 2.03(a).
"Note Registrar" has the meaning specified in Section 2.03(a).
"Noteholder", "holder of Notes", "holder" or other similar term
means any Person in whose name at the time a particular Note is registered on
the Note Register.
"Officers' Certificate", when used with respect to the Company,
means a certificate signed by the Chief Executive Officer, any Vice Chairman,
the President, any of the Executive Vice Presidents or any of the Senior Vice
Presidents, the Secretary or any Assistant Secretary, or the General Counsel.
Except as otherwise provided in this Indenture, each such certificate shall
include the statements provided for in Section 13.05.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, and who shall be
acceptable to the Trustee. Except as otherwise provided in this Indenture, each
such opinion shall include the statements provided for in Section 13.05.
"outstanding", when used with reference to Notes, subject to the
provisions of Section 6.04, means, as of any particular time, all Notes
authenticated and delivered by the Trustee pursuant to this Indenture except:
(a) such Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) such Notes, or portions thereof, for the payment of which money
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); and
(c) Notes in lieu of or in substitution for which other Notes shall
have been authenticated and delivered pursuant to the terms of Section
2.08, except to the extent that a bona fide holder in due course of any
such Notes shall have presented proof satisfactory to the Trustee that
such holder is a bona fide holder in due course of any such Notes.
"Paying Agent" means any Person authorized by the Company to pay the
principal of and any premium or interest on the Notes on behalf of the Company.
"Person" means a corporation, an association, a partnership, a
limited liability company, a joint venture, an organization, a trust, an
individual, a government or a political subdivision thereof or a governmental
agency.
4
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt that was evidenced by such
particular Note, and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.08 in lieu of a mutilated,
destroyed, lost or stolen Note shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Note.
"Private Placement Legend" has the meaning specified in Section
2.06(b).
"Ranking Junior to the Notes", when used with respect to any
obligation of the Company, means any obligation of the Company which (a) ranks
junior to and not equally with or prior to the Notes in right of payment upon
the happening of any event of the kind specified in the first sentence of the
first paragraph of Section 12.01, and (b) is specifically designated as ranking
junior to the Notes by express provisions in the instrument creating or
evidencing such obligation.
"Ranking on a Parity with the Notes", when used with respect to any
obligation of the Company, means any obligation of the Company which (a) ranks
equally with and not prior to the Notes in right of payment upon the happening
of any event of the kind specified in the first sentence of the first paragraph
of Section 12.01, and (b) is specifically designated as ranking on a parity with
the Notes 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 Notes or Ranking Junior to the Notes, is not deemed to prevent
such obligations from constituting obligations Ranking on a Parity with the
Notes or Ranking Junior to the Notes.
"Registered Exchange Offer" means an exchange offer by the Company
registered under the Securities Act pursuant to which Notes originally issued
pursuant to an exemption from registration under the Securities Act are
exchanged for Notes of like principal amount not bearing the Private Placement
Legend.
"Registration Rights Agreement" means any registration rights
agreement between the Company and one or more investment banks acting as initial
purchasers in connection with any issuance of Notes under this Indenture,
including the Issue Date Registration Rights Agreement.
"Registration Statement" means an effective shelf registration
statement under the Securities Act that registers the resale by holders (and
beneficial owners) of Notes (or beneficial interests therein) originally issued
pursuant to an exemption from registration under the Securities Act.
"Regular Record Date", with respect to the interest payable on any
Interest Payment Date, whether or not a Business Day, on the Notes, means the
June 1 or December 1, as the case may be, immediately preceding an Interest
Payment Date.
"Regulation S" has the meaning specified in Section 2.01(e).
"Regulation S Global Note" has the meaning specified in Section
2.01(e).
5
"Regulation S Permanent Global Note" has the meaning specified in
Section 2.01(e).
"Regulation S Temporary Global Note" has the meaning specified in
Section 2.01(e).
"Responsible Officer", when used with respect to the Trustee, means
(i) the Chairman or Vice Chairman of its board of directors, (ii) the Chairman
or Vice Chairman of the executive committee of the board of directors or the
President, (iii) any Vice President, any senior trust officer, any trust
officer, any assistant trust officer or any other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by
the persons who at the time shall be the above-named officers and in each case
who is assigned to the corporate trust department of the Trustee and (iv) any
employee of the Trustee to whom any corporate trust matter with respect to this
Indenture is referred because of such officer's knowledge of and familiarity
with the particular subject.
"Rule 144A" has the meaning specified in Section 2.01(d).
"Rule 144A Global Note" has the meaning specified in Section
2.01(d).
"Securities Act" has the meaning specified in Section 2.01(d).
"Senior Indebtedness" means the following, whether now outstanding
or subsequently created, assumed or incurred: (1) all indebtedness of the
Company for money borrowed, including any obligation of, or any obligation
guaranteed by, the Company, for the repayment of borrowed money, whether or not
evidenced by bonds, debentures, securities, notes or other written instruments;
(2) any deferred obligation of the Company for the payment of the purchase price
of property or assets acquired other than in the ordinary course of business;
(3) all obligations, contingent or otherwise, of the Company in respect of any
letters of credit, bankers acceptances, security purchase facilities and similar
transactions; (4) all capital lease obligations of the Company; (5) all
obligations of the Company in respect of interest rate swap, cap or other
agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contacts, commodity contracts and other similar
agreements; (6) all obligations of the type referred to in clauses (1) through
(5) of other Persons for the payment of which the Company is responsible or
liable as obligor, guarantor or otherwise; provided, however, that "senior
indebtedness" does not include (a) the Notes issued under this Indenture, (b)
any obligation Ranking on a Parity with the Notes, or (c) any obligation Ranking
Junior to the Notes.
"Special Record Date" has the meaning specified in Section 2.11.
"Stated Maturity", when used with respect to any Note or any
installment of principal thereof, premium, if any, or interest thereon, means
the date specified in such Note as the fixed date on which the principal of such
Note, premium, if any, or such installment of interest is due and payable.
6
"Subsidiary" means any Person of which a majority of the aggregate
voting power of the outstanding Voting Stock at the time shall be owned by the
Company or by the Company and one or more Subsidiaries or by one or more
Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as it
was in force at the date of execution of this Indenture, except as provided in
Section 8.03; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person identified as the Trustee in the first
paragraph of this Indenture until a successor shall succeed to the trusts
created by this Indenture pursuant to the provision of Article Five, and
thereafter shall mean such successor.
"United States" means the United States of America (including the
District of Columbia) and its possessions.
"U.S. Government Obligations" has the meaning specified in Section
10.05(b).
"Vice President", when used with respect to the Company or the
Trustee, means any such officer whether or not designated by a number or a word
or words added before or after such title.
"Voting Stock" of a Person means stock or any other form of equity
or voting interest of the class or classes having general voting power in an
election of the board of directors, managing partners, managers or trustees of
such Person (irrespective of whether, at the time, stock of any other class or
classes shall have or might have voting power by reason of the happening of any
contingency).
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01 FORM AND DATING
(a) The Issue Date Notes are being originally offered and sold by
the Company pursuant to a Purchase Agreement dated June 15, 2005 between the
Company and the Initial Purchasers. The Notes will be issued in fully-registered
certificated form without coupons, and in denominations of $1,000 and any
integral multiple thereof. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Appendix A.
(b) The terms and provisions of the Notes, the form of which is in
Appendix A and Appendix B, as applicable, shall constitute, and are hereby
expressly made, a part of this Indenture, and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture
expressly agree to such terms and provisions and to be bound thereby. Except as
otherwise expressly permitted in this Indenture, all Notes shall be identical in
all
7
respects. Notwithstanding any differences among them, all Notes issued under
this Indenture shall vote and consent together on all matters as one class.
(c) The Notes may have notations, legends or endorsements as
specified in Section 2.06 or as otherwise required by law, stock exchange rule
or the Depositary's rules or usage. The Company and the Trustee shall approve
the form of the Notes and any notation, legend or endorsement on them. Each Note
shall be dated the date of its authentication.
(d) Notes initially offered and sold to qualified institutional
buyers (as defined in Rule 144A ("Rule 144A") under the United States Securities
Act of 1933, as amended (the "Securities Act")) in the United States in reliance
upon the exemption from the registration requirements of the Securities Act
provided by Rule 144A must be issued in the form of one or more permanent Global
Notes (each, a "Rule 144A Global Note").
(e) Notes originally offered and sold outside the United States in
reliance on Regulation S ("Regulation S") under the Securities Act must be
issued in the form of one or more temporary Global Notes (each, a "Regulation S
Temporary Global Note"). Each such Global Note must be duly executed by the
Company, authenticated by the Trustee in the manner set forth in Section 2.02
hereof, deposited with the Trustee, as Note Custodian, and registered in the
name of Cede & Co. ("Cede"), as nominee of the Depositary, for credit to the
respective accounts of the participants of the Depositary acting as depositaries
for Euroclear Bank S.A./N.V. ("Euroclear") or Clearstream Banking, societe
anonyme ("Clearstream Luxembourg"), or such other accounts as the Initial
Purchasers may direct. An interest in a Regulation S Temporary Global Note will
be exchangeable for an interest in a permanent Global Note (a "Regulation S
Permanent Global Note," and together with the Regulation S Temporary Global
Note, a "Regulation S Global Note") on or after the expiration of the
Distribution Compliance Period upon the receipt by the Note Registrar of a
certificate in the form of Appendix C-1 (a "Non-U.S. Beneficial Ownership
Certification") to the effect that Euroclear or Clearstream Luxembourg, as
applicable, has received a certificate in the form of Appendix C-2, from the
holder of a beneficial interest in such Regulation S Temporary Global Note (or
its agent) in the principal amount to be exchanged. Upon receipt by the Note
Registrar of a Non-U.S. Beneficial Ownership Certification, (i) with respect to
the first such Non-U.S. Beneficial Ownership Certification, the Company will
execute, and upon Company Order the Trustee will authenticate and deliver to the
Note Custodian, one or more Regulation S Permanent Global Notes and (ii) with
respect to the first and each subsequent Non-U.S. Beneficial Ownership
Certification, the Note Registrar and the Note Custodian shall exchange the
interest in the Regulation S Temporary Global Note covered by such Non-U.S.
Beneficial Ownership Certification for an interest of equal principal amount in
a Regulation S Permanent Global Note. Upon any exchange of an interest in a
Regulation S Temporary Global Note for a comparable interest in the Regulation S
Permanent Global Note, the Note Registrar shall decrease the Regulation S
Temporary Global Note and increase the Regulation S Permanent Global Note, in
each case in an amount equal to the principal amount of Notes covered by the
applicable Non-U.S. Beneficial Ownership Certification.
As used in this Agreement, the term "Distribution Compliance Period"
means the period of 40 consecutive days beginning on and including the later of
(i) the day on which the
8
Notes are first offered by the Initial Purchasers for the Notes to Persons other
than distributors (as defined in Regulation S) in reliance on Regulation S and
(ii) the day on which the closing for the offering of the Notes occurs.
SECTION 2.02 EXECUTION AND AUTHENTICATION
(a) The Notes shall be signed in the name and on behalf of the
Company by the manual or facsimile signature of its Chief Executive Officer, any
Vice Chairman, President, any Executive Vice President, any Senior Vice
President, its Secretary, its Assistant Secretary or the General Counsel and
attested by its Secretary or an Assistant Secretary, under its corporate seal
(which may be printed, engraved or otherwise reproduced thereon, by facsimile or
otherwise).
(b) No Note shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose unless such Note bears thereon a
certificate of authentication substantially in the form set forth in Appendix A
validly executed by the authorized signatory of the Trustee or the
Authenticating Agent, if a Person other than the Trustee. Such certificate by
the Trustee upon any Note executed by the Company shall be conclusive evidence
that the Note so authenticated has been duly authenticated and delivered under
this Indenture.
The Trustee shall have the right to decline to authenticate and
deliver any Notes under this Section 2.02 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith by its board of directors or trustees, executive committee or a
trust committee of directors or trustees or Responsible Officers shall determine
that such action would expose the Trustee to personal liability to existing
holders.
(c) In case any officer of the Company whose manual or facsimile
signature appears on any of the Notes shall cease to be such officer before the
Notes so signed shall have been authenticated and delivered by the Trustee, or
disposed of by the Company, such Notes nevertheless may be authenticated and
delivered or disposed of as though the person whose manual or facsimile
signature appears on such Notes had not ceased to be such officer of the
Company; and any Note may bear the manual or facsimile signature on behalf of
the Company by such persons as, at the actual date of the execution of such
Note, shall be the proper officers of the Company, although at the date of the
execution of this Indenture any such person was not such an officer.
(d) At any time and from time to time after the execution and
delivery of this Indenture, the Trustee shall authenticate and make available
for delivery Notes upon a Company Order specifying the principal amount of the
Notes to be authenticated and the date on which the original issue of Notes is
to be authenticated. The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is unlimited.
(e) The Trustee may appoint an Authenticating Agent pursuant to
Section 13.11 hereof to authenticate the Notes. Unless limited by the terms of
such appointment, any such Authenticating Agent may authenticate Notes whenever
the Trustee may do so. Each
9
reference in this Indenture to authentication by the Trustee includes
authentication by the Authenticating Agent.
(f) In case a successor Person has executed an indenture
supplemental hereto with the Trustee pursuant to Article Eight, any of the Notes
authenticated or delivered prior to such transaction may, from time to time, at
the request of the successor Person, be exchanged for other Notes executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise identical to the Notes surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Order of
the successor Person, shall authenticate and deliver Notes as specified in such
order for the purpose of such exchange. If Notes shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section 2.02 in exchange or substitution for or upon registration of
transfer of any Notes, such successor Person, at the option of the holders but
without expense to them, shall provide for the exchange of all Notes at the time
outstanding for Notes authenticated and delivered in such new name.
SECTION 2.03 NOTE REGISTRAR
(a) The Company shall keep, at the office or agency to be maintained
by the Company in accordance with the provisions of Section 3.02 a register or
registers (the "Note Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for registration of Notes and
registration of transfer of Notes as provided in Article Two. The Note 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 Note Register
shall be open for inspection by the Trustee. Upon due presentment for
registration of transfer of any Note at such office or agency, the Company shall
execute and register and the Trustee shall authenticate and deliver in the name
of the transferee or transferees a new Note or Notes for an equal aggregate
principal amount. The Company hereby initially appoints the Trustee, at its
Corporate Trust Office, as Note Registrar ("Note Registrar"), until such time as
another Person is appointed as such.
(b) The Company shall enter into an appropriate agency agreement
with any Note Registrar not a party to this Indenture, which shall incorporate
the terms of the Trust Indenture Act. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. If the Company fails to
maintain a Note Registrar, the Trustee shall act as such and shall be entitled
to appropriate compensation therefore pursuant to Section 5.06. The Company may
act as Note Registrar, until such time as another Person is appointed as such.
SECTION 2.04 HOLDER LISTS
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
holders. If the Trustee is not the Note Registrar, or to the extent otherwise
required under the Trust Indenture Act, the Company shall furnish to the
Trustee, in writing at least seven Business Days before each Interest Payment
10
Date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of holders.
SECTION 2.05 GLOBAL NOTE PROVISIONS
(a) Each Global Note initially shall: (i) be duly executed by the
Company in the manner set forth in Section 2.02, (ii) be authenticated by the
Trustee in the manner set forth in Section 2.02 hereof, (iii) be deposited with
the Trustee, at its Corporate Trust Office, as Note Custodian, (iv) be
registered in the name of Cede, as nominee of the Depositary, for credit to the
respective accounts of the Initial Purchasers for the Notes at the Depositary or
such other accounts as they may direct and (v) bear the appropriate legend(s),
as provided in Section 2.06 and set forth in Appendix A. The aggregate principal
amount of each Global Note may from time be increased or decreased by
adjustments made on the records of the Trustee, as Note Custodian, or the
Depositary, or its nominee, as the case may be, as hereinafter provided.
(b) Neither any members of, or participants in, the Depositary
("Agent Members"), nor any other person on whose behalf Agent Members may act
(including Euroclear and Clearstream Luxembourg and participants and account
holders therein), have any rights under this Agreement with respect to any
Global Note held on their behalf by the Depositary or any nominee thereof, or
under any such Global Note, and the Depositary or such nominee may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and holder of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing in this Agreement prevents 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 the Depositary
or such nominee or impair, as between the Depositary, its Agent Members and any
other person on whose behalf the Agent Member may act, the operation of
customary practices governing the exercise of the rights of a holder of an
interest in any Note.
(c) Except as provided in Section 2.07(c) below, owners of
beneficial interests in Global Notes will not be entitled to receive
certificated Notes in registered form without interest coupons (the "Definitive
Notes"). In connection with the exchange of an entire Global Note for Definitive
Notes pursuant to Section 2.07(c), such Global Note shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and
upon Company Order the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in such Global Note, an equal aggregate principal amount of Definitive
Notes of authorized denominations. The Definitive Notes shall be substantially
of the tenor and purport as set forth in Appendix B and having such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange or
to conform to usage or as may be determined consistently herewith by the
officers executing such Notes, as evidenced by their execution. The Definitive
Notes shall be printed, lithographed or engraved or produced by any combination
of these methods on steel engraved borders or may be produced in any other
manner permitted by the rules of any securities exchange, all as may be
determined by the officers executing the Notes.
11
SECTION 2.06 LEGENDS
(a) Each Global Note shall bear the legend specified therefor in
Appendix A on the face thereof.
(b) Each Regulation S Temporary Global Note and Rule 144A Global
Note shall bear the private placement legend specified therefor in Appendix A on
the face thereof (together with, if applicable, paragraph (a) of this Section
2.06, the "Private Placement Legend").
(c) Each Regulation S Temporary Global Note shall also bear the
additional legend specified therefor in Appendix A on the face thereof.
SECTION 2.07 EXCHANGE AND REGISTRATION OF TRANSFER OF NOTES
(a) Notes may be exchanged for a like aggregate principal amount of
Notes of other authorized denominations. Notes to be exchanged shall be
surrendered at the office or agency to be maintained by the Company pursuant to
Section 3.02, and the Company shall execute and cause to be registered, and the
Trustee shall authenticate and deliver in exchange therefor, the Note or Notes
which the Noteholder making the exchange shall be entitled to receive.
(b) Notwithstanding any provision to the contrary herein, so long as
a Global Note remains outstanding and is held by or on behalf of the Depositary,
transfers of a Global Note or a beneficial interest therein, in whole or in
part, shall be made only in accordance with this Section 2.07(b) as follows:
(i) TRANSFERS OF GLOBAL NOTES IN WHOLE. Subject to clauses
(ii) through (iv) of this Section 2.07(b) and Section 2.07(c) herein,
transfers of a Global Note shall be limited to transfers of such Global
Note in whole, but not in part, to the Depositary or to nominees of the
Depositary or to a successor of the Depositary or such successor's
nominee.
(ii) TRANSFER OR EXCHANGE FROM RULE 144A GLOBAL NOTE TO
REGULATION S TEMPORARY GLOBAL NOTE. If a holder of a beneficial interest
in the Rule 144A Global Note deposited with the Depositary wishes at any
time to exchange its interest in such Rule 144A Global Note for an
interest in the Regulation S Temporary Global Note, or to transfer its
interest in such Rule 144A Global Note to a person who wishes to take
delivery thereof in the form of an interest in the Regulation S Temporary
Global Note, such holder may, subject to the rules and procedures of the
Depositary as in effect from time to time, exchange or cause the exchange
or transfer of such interest for an equivalent beneficial interest in the
Regulation S Temporary Global Note in accordance with this Section
2.07(b)(ii). Upon receipt by the Trustee, as transfer agent, of (A)
instructions given in accordance with the Depositary's procedures from an
Agent Member directing the Trustee to debit or to cause to be debited a
beneficial interest in the Rule 144A Global Note in a specified principal
amount from such Agent Member's account and to credit or cause to be
credited a beneficial interest of an equivalent principal amount in the
Regulation S Temporary Global Note to another specified Agent
12
Member's account, (B) an order given by the holder of such beneficial
interest in the Rule 144A Global Note in accordance with the Depositary's
procedures containing information regarding the Euroclear or Clearstream
Luxembourg account to be credited with such increase and the name of such
account, and (C) a certificate in the form of Appendix D hereto given by
the holder of such beneficial interest stating that the exchange or
transfer of such interest has been made in compliance with the transfer
restrictions applicable to the Notes and that such transfer or exchange
has been made pursuant to and in accordance with Regulation S, the
Trustee, as Note Custodian, shall instruct the Depositary to reduce the
Rule 144A Global Note by the aggregate principal amount of the beneficial
interest in the Rule 144A Global Note to be so exchanged or transferred
and the Trustee, as transfer agent, shall instruct the Depositary
concurrently with such reduction, to increase the principal amount of the
Regulation S Temporary Global Note by the aggregate principal amount of
the beneficial interest in the Rule 144A Global Note to be so exchanged or
transferred, and to credit or cause to be credited to the account of the
person specified in such instructions (who shall be an agent member of
Euroclear or Clearstream Luxembourg, or both) a beneficial interest in the
Regulation S Temporary Global Note equal to the reduction in the principal
amount of the Rule 144A Global Note.
(iii) TRANSFER OR EXCHANGE FROM RULE 144A GLOBAL NOTE TO
REGULATION S PERMANENT GLOBAL NOTE. If a holder of a beneficial interest
in the Rule 144A Global Note deposited with the Depositary wishes at any
time to exchange its interest in such Rule 144A Global Note for an
interest in the Regulation S Permanent Global Note, or to transfer its
interest in such Rule 144A Global Note to a person who wishes to take
delivery thereof in the form of an interest in the Regulation S Permanent
Global Note, such holder may, subject to the rules and procedures of the
Depositary, as in effect from time to time, exchange or transfer, or cause
the exchange or transfer, of such interest for an equivalent beneficial
interest in the Regulation S Permanent Global Note in accordance with this
Section 2.07(b)(iii). Upon receipt by the Trustee, as transfer agent, of
(A) instructions given in accordance with the Depositary's procedures from
an Agent Member directing the Trustee to debit or to cause to be debited a
beneficial interest in the Rule 144A Global Note in a specified principal
amount from such Agent Member's account and to credit or cause to be
credited a beneficial interest of an equivalent principal amount in the
Regulation S Permanent Global Note, (B) an order given by the holder of
such beneficial interest in accordance with the Depositary's procedures
containing information regarding the Euroclear or Clearstream Luxembourg
account or participant account of the Depositary to be credited with such
increase, (C) a certificate in the form of Appendix E hereto given by the
holder of such beneficial interest stating that the exchange or transfer
of such interest has been made in compliance with the transfer
restrictions applicable to the Notes and (1) that such transfer or
exchange has been made pursuant to and in accordance with Regulation S or
(2) that the Note being exchanged or transferred is not a "restricted
security" as defined in Rule 144 under the Securities Act, the Trustee, as
transfer agent, shall instruct the Depositary to reduce the Rule 144A
Global Note by the aggregate principal amount of the beneficial interest
in the Rule 144A Global Note to be so exchanged or transferred and the
Trustee, as transfer agent, shall instruct the Depositary, concurrently
with such reduction, to increase the principal amount of the Regulation S
Permanent Global Note by the aggregate principal amount of
13
the beneficial interest in the Rule 144A Global Note to be so exchanged or
transferred, and to credit or cause to be credited to the account of the
person specified in such instructions a beneficial interest in the
Regulation S Permanent Global Note equal to the reduction in the principal
amount of the Rule 144A Global Note.
(iv) TRANSFER OR EXCHANGE FROM REGULATION S TEMPORARY GLOBAL
NOTE OR REGULATION S PERMANENT GLOBAL NOTE TO RULE 144A GLOBAL NOTE. If a
holder of a beneficial interest in the Regulation S Temporary Global Note
or the Regulation S Permanent Global Note deposited with the Depositary
wishes at any time to exchange its interest in such Regulation S Temporary
Global Note or Regulation S Permanent Global Note for an interest in the
Rule 144A Global Note, or to transfer its interest in such Regulation S
Temporary Global Note or Regulation S Permanent Global Note to a person
who wishes to take delivery thereof in the form of an interest in the Rule
144A Global Note, such holder may, subject to the rules and procedures of
Euroclear or Clearstream Luxembourg and the Depositary, as the case may
be, as in effect from time to time, exchange or transfer, or cause the
exchange or transfer, of such interest for an equivalent beneficial
interest in the Rule 144A Global Note in accordance with this Section
2.07(b)(iv). Upon receipt by the Trustee, as transfer agent, of (A)
instructions from Euroclear or Clearstream Luxembourg or an Agent Member,
as the case may be, directing the Trustee, as transfer agent, to debit or
to be caused to be debited a beneficial interest in the Regulation S
Temporary Global Note or the Regulation S Permanent Global Note, as the
case may be, in a specified principal amount from such Agent Member's
account and to credit or cause to be credited a beneficial interest of an
equivalent principal amount in the Rule 144A Global Note to another Agent
Member's account, such instructions to contain information regarding the
Agent Member's account with the Depositary to be credited with such
increase, and, with respect to an exchange or transfer of an interest in
the Regulation S Permanent Global Note, information regarding the Agent
Member's account with the Depositary to be debited with such decrease, and
(B) with respect to an exchange or transfer of an interest in the
Regulation S Temporary Global Note or the Regulation S Permanent Global
Note for an interest in the Rule 144A Global Note, a certificate in the
form of Appendix F hereto given by the holder of such beneficial interest
and stating that the person transferring such interest in the Regulation S
Temporary Global Note or the Regulation S Permanent Global Note, as the
case may be, reasonably believes that the person acquiring such interest
in the Rule 144A Global Note is a qualified institutional buyer (as
defined in Rule 144A under the Securities Act) and is obtaining such
beneficial interest in a transaction meeting the requirements of Rule 144A
under the Securities Act, the Trustee, as Note Custodian, shall instruct
the Depositary to reduce the Regulation S Temporary Global Note or the
Regulation S Permanent Global Note, as the case may be, by the aggregate
principal amount of the beneficial interest in the Regulation S Temporary
Global Note or the Regulation S Permanent Global Note to be exchanged or
transferred, and the Trustee, as transfer agent, shall instruct the
Depositary, concurrently with such reduction, to increase the principal
amount of the Rule 144A Global Note by the aggregate principal amount of
the beneficial interest in the Regulation S Temporary Global Note or the
Regulation S Permanent Global Note, as the case may be, to be so exchanged
or transferred, and to credit or cause to be credited to the account of
the person specified in such instructions a beneficial
14
interest in the Rule 144A Global Note equal to the reduction in the
principal amount of the Regulation S Temporary Global Note or the
Regulation S Permanent Global Note, as the case may be.
(v) No certification is required in connection with any
transfer or exchange of any Note (or beneficial interest therein) except
in the case of the transfers described in subparagraphs (i) through (iv)
of paragraph (d) of this Section 2.07.
(c) TRANSFER OR EXCHANGE OF NOTES FOR DEFINITIVE NOTES
(i) In the event that a Global Note is exchanged for
Definitive Notes pursuant to this Section 2.07(c), such Definitive Notes
may be exchanged or transferred only in accordance with such procedures as
are substantially consistent, as if applicable, with the provisions of
clauses 2.07(b)(ii) through (iv) above (including the certification
requirements intended to ensure that such exchanges or transfers comply
with Rule 144A or Regulation S under the Securities Act, as the case may
be) and as may be from time to time adopted by the Company and the
Trustee. Definitive Notes issued in exchange for interests in the Rule
144A Global Note will bear the Private Placement Legend, and the Company
will be entitled to request satisfactory evidence of compliance by the
holder with the terms of the Private Placement Legend prior to effecting
registration of a transfer, exchange or replacement of such Definitive
Notes.
(ii) Interests in a Global Note deposited with the Depositary
pursuant to Section 2.05 hereto may be transferred to the beneficial
owners thereof in the form of Definitive Notes only if:
(x) such transfer complies with Section 2.07(b) and the
Depositary notifies the Company that it is unwilling or unable to
continue as depositary for such Global Note or if at any time the
Depositary ceases to be a "clearing agency" registered under the
United States Securities Exchange Act of 1934, as amended, and a
successor depositary so registered is not appointed by the Company
within 90 days of such notice. In such event, the Company will
execute, and the Trustee, upon receipt of a Company Order for
authentication and delivery of Definitive Notes, will authenticate
and deliver Definitive Notes only in fully registered form without
coupons in authorized denominations in an aggregate principal amount
equal to the aggregate principal amount of the Global Notes,
(y) the Company at any time and in its sole discretion
determines not to have any of the Notes held in the form of Global
Notes and executes and delivers to the Trustee and Note Registrar an
Officers' Certificate stating that such Global Note shall be so
transferred; provided that in no event shall the Regulation S
Temporary Global Note be exchanged for Definitive Notes prior to the
expiration of the Distribution Compliance Period, or
15
(z) an Event of Default has occurred and is continuing
and the Note Registrar has received a request from the Depositary.
(iii) If interests in any Global Note are to be transferred to
the beneficial owners thereof in the form of Definitive Notes pursuant to
this Section 2.07(c), such Global Note must be surrendered by the
Depositary to the Note Registrar to be so transferred, without charge, and
the Trustee, upon receipt of a Company Order for the authentication and
delivery of Definitive Notes, shall authenticate and deliver Definite
Notes only in registered form without coupons, in authorized
denominations, in an aggregate principal amount equal to the aggregate
principal amount of the Global Notes. The Company must deliver such
Definitive Notes in a sufficient quantity to the Trustee no later than 30
days after the first date on which interests in a Global Note are to be
made available in definitive form pursuant to Section 2.07(c)(ii)(x). The
Definitive Notes transferred pursuant to this Section 2.07(c) must be
registered in such names as the Depositary will direct in writing. The
Trustee will have not more than 30 days from the date of its receipt of
Definitive Notes and registration information to authenticate and deliver
such Definitive Notes. Any Definitive Notes delivered in exchange for an
interest in a Rule 144A Global Note shall bear the legend regarding
transfer restrictions applicable to the Rule 144A Global Note set forth on
the form of Global Note attached as Appendix A hereto. In no event will
the Trustee be liable for the costs and expenses of printing, preparing or
delivering any Definitive Notes.
(iv) Subject to Section 2.07(c)(i), the holder of any
Definitive Note may transfer the same in whole or in part in an authorized
denomination by surrendering at the office of the Note Registrar or at the
office of any other transfer agent that may be appointed by the Company
such Definitive Note with the form of transfer thereon duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Note Registrar or any such transfer agent, as the case
may be, duly executed by, the holder thereof or his attorney-in-fact duly
authorized in writing. In exchange for any Definitive Notes properly
presented for transfer, the Trustee shall promptly authenticate and
deliver or cause to be authenticated and delivered at the office of the
Note Registrar or at the office of any transfer agent, as the case may be,
to the transferee, or send by mail (at the risk of the transferee) to such
address as the transferee may request, Definitive Notes registered in the
name of such transferee, for the same aggregate principal amount as was
transferred. In the case of the transfer of any Definitive Notes in part,
the Trustee shall also promptly authenticate and deliver or cause to be
authenticated and delivered at the office of the Note Registrar or at the
office of any transfer agent, as the case may be, to the transferor or
send by mail (at the risk of the transferor) to such address as the
transferor may request, Definitive Notes registered in the name of the
transferor, for the aggregate principal amount that was not transferred.
No transfer of any Definitive Notes may be made unless the request for
such transfer is made by the registered holder or by a duly authorized
attorney-in-fact of such holder at the office of the Note Registrar or at
the office of any other transfer agent that may be appointed by the
Company.
16
(v) At the option of the holder on request confirmed in
writing and subject to applicable laws and regulations and to the terms
set forth in the Definitive Note (which shall be substantially in the form
of Appendix B attached hereto), Definitive Notes may be exchanged for
Definitive Notes of any authorized denominations and of equal aggregate
principal amount, upon surrender of the Definitive Notes to be exchanged
at the office of the Note Registrar or at the office of a transfer agent.
Whenever any Definitive Note is so surrendered for exchange, together with
a written request for exchange, the Trustee shall promptly authenticate
and deliver or cause to be authenticated and delivered at the office of
any transfer agent, as the case may be, Definitive Notes which the holder
making the exchange is entitled to receive.
(d) USE AND REMOVAL OF PRIVATE PLACEMENT LEGENDS. Upon the transfer,
exchange or replacement of Notes (or beneficial interests in a Global Note) not
bearing (or not required to bear upon such transfer, exchange or replacement) a
Private Placement Legend, the Trustee, as Note Registrar and Note Custodian,
shall exchange such Notes (or beneficial interests) for beneficial interests in
a Global Note (or Definitive Notes if they have been issued pursuant to Section
2.07(c)) that does not bear a Private Placement Legend. Upon the transfer,
exchange or replacement of Notes (or beneficial interests in a Global Note)
bearing a Private Placement Legend, the Trustee, as Note Registrar and Note
Custodian, shall deliver only Notes (or beneficial interests in a Global Note)
that bear a Private Placement Legend unless:
(i) such Notes (or beneficial interests) are exchanged in a
Registered Exchange Offer;
(ii) such Notes (or beneficial interests) are transferred
pursuant to a Registration Statement;
(iii) such Notes (or beneficial interests) are transferred
pursuant to Rule 144 upon delivery to the Note Registrar of a certificate
of the transferor in the form of Appendix G and an Opinion of Counsel
reasonably satisfactory to the Note Registrar to the effect that neither
the Private Placement Legend nor the related restrictions on transfer are
required to maintain compliance with the provisions of the Securities Act;
or
(iv) in connection with such transfer, exchange or replacement
the Note Registrar shall have received an Opinion of Counsel and other
evidence reasonably satisfactory to it to the effect that neither such
Private Placement Legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the
Securities Act.
(e) CONSOLIDATION OF GLOBAL NOTES AND EXCHANGE OF DEFINITIVE NOTES
FOR BENEFICIAL INTERESTS IN GLOBAL NOTES
(i) If a Global Note not bearing a Private Placement Legend
(other than a Regulation S Global Note) is outstanding at the time of a
Registered Exchange Offer, any interests in a Global Note exchanged in
such Registered Exchange Offer shall be exchanged for interests in such
outstanding Global Note.
17
(ii) Upon the transfer or exchange (including pursuant to a
Registered Exchange Offer) of any Definitive Note for which a Private
Placement Legend would not be required pursuant to Section 2.07(d)
following such transfer or exchange, such Definitive Note shall be
exchanged for an interest in a Global Note (other than a Regulation S
Global Note) not bearing a Private Placement Legend and, if no such Global
Note is outstanding at such time, the Company shall execute and upon
Company Order the Trustee shall authenticate a Global Note not bearing a
Private Placement Legend.
(iii) Nothing in this Indenture shall provide for the
consolidation of any Notes with any other Notes to the extent that they
constitute, as determined pursuant to an Opinion of Counsel, different
classes of securities for U.S. federal income tax purposes.
(f) EXECUTION, AUTHENTICATION OF NOTES, ETC.; NOTES ISSUED UPON
REGISTERED EXCHANGE OFFER
(i) All Notes surrendered for registration of transfer or
exchange shall be delivered to the Note Registrar. The Note Registrar
shall cancel and destroy all such Notes surrendered for registration of
transfer or exchange and shall promptly deliver a certificate of
destruction, stating the serial numbers, U.S. dollar value and total
number of all Notes destroyed hereunder, to the Company.
(ii) Subject to the other provisions of this Section 2.07,
when Notes are presented to the Note Registrar with a request to register
the transfer of such Notes or to exchange such Notes for an equal
principal amount of Notes of other authorized denominations, the Note
Registrar shall register the transfer or make the exchange as requested if
its requirements for such transaction are met; provided that any Notes
presented or surrendered for registration of transfer or exchange shall be
duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Note Registrar, duly executed by the holder thereof or
his attorney duly authorized in writing. To permit registrations of
transfers and exchanges and subject to the other terms and conditions of
this Article Two, the Company will execute and upon Company Order the
Trustee will authenticate Definitive Notes and Global Notes at the Note
Registrar's request.
(iii) No service charge shall be made for any exchange or
registration of transfer of Notes, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any such exchange or registration of transfer.
(iv) Upon the occurrence of a Registered Exchange Offer in
accordance with any Registration Rights Agreement (including the Issue
Date Registration Rights Agreement), the Company shall issue and, upon
receipt of a Company Order in accordance with Section 2.02, the Trustee
shall authenticate one or more unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial interests
in the Rule 144A Global Notes and Regulation S
18
Global Notes tendered for acceptance by Persons that certify in the
applicable letters of transmittal that (x) they are not broker-dealers
holding unsold allotment Notes, (y) they are not participating in a
distribution of the Exchange Notes and (z) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in the
Exchange Offer. Concurrently with the issuance of such Notes, the Trustee
shall cause the aggregate principal amount of the applicable Rule 144A
Global Notes and Regulation S Global Notes to be reduced accordingly.
(g) NO OBLIGATION OF THE TRUSTEE
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of an interest in a Global Note, a member of, or a
participant in, the Depositary or other Person with respect to the
accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest in
the Notes or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any notice
(including any notice of redemption) or the payment of any amount or
delivery of any Notes (or other security or property) under or with
respect to such Notes. All notices and communications to be given to the
holders and all payments to be made to holders in respect of the Notes
shall be given or made only to or upon the order of the registered holders
(which shall be the Depositary or its nominee in the case of a Global
Note). The Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or
among the Depositary participants, members or beneficial owners in any
Global Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by, the terms of this Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
SECTION 2.08 MUTILATED, DESTROYED; LOST OR STOLEN NOTES
(a) In case any temporary or Definitive Note shall become mutilated
or be destroyed, lost or stolen, the Company in its discretion may execute, and
upon its request and in the absence of written notice to the Company and a
Responsible Officer of the Trustee that such Note has been acquired by a bona
fide purchaser, the Trustee shall authenticate and deliver, a new Note of equal
aggregate principal amount and of like tenor and terms bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Note, or in lieu of and in substitution for the Note so destroyed, lost or
stolen. In every case the applicant for a substitute Note shall furnish to the
Company and to the Trustee such security or indemnity as may be required by them
to hold each of them harmless, and, in every case of destruction, loss or theft,
the applicant also shall furnish to the Company and to the Trustee evidence to
their satisfaction of the destruction, loss or theft of such Note.
19
(b) The Trustee may authenticate any such substitute Note and
deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substitute Note, 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 (including
the fees and expenses of the Trustee) connected therewith. In case any Note
which has matured or is about to mature shall become mutilated or be destroyed,
lost or stolen, the Company, instead of issuing a substitute Note, may pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Note) if the applicant for such payment shall furnish to the
Company and to the Trustee such security or indemnity as may be required by them
to hold each of them harmless and, in case of destruction, loss or theft,
evidence satisfactory to the Company and the Trustee of the destruction, loss or
theft of such Note.
(c) Every substitute Note issued pursuant to the provisions of this
Section 2.08 by virtue of the fact that any Note is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Note 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 Notes duly issued under this Indenture. All Notes shall be
held and owned by the holders upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes 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 2.09 TEMPORARY NOTES
Pending the preparation of Definitive Notes, the Company may execute
and the Trustee shall authenticate and deliver temporary Notes (printed,
lithographed or typewritten). Temporary Notes shall be issuable in any
authorized denomination, and substantially in the form of the Definitive Notes,
but with such omissions, insertions and variations as may be appropriate for
temporary Notes, all as may be determined by the Company. Every such temporary
Note shall be authenticated by the Trustee in substantially the same manner, and
with the same effect, as the Definitive Notes. Without unreasonable delay the
Company will execute and deliver to the Trustee Definitive Notes and thereupon
any or all temporary Notes may be surrendered in exchange therefor at the
principal office of the Trustee, and the Trustee shall authenticate and deliver
in exchange for such temporary Notes an equal aggregate principal amount of
Definitive Notes of authorized denominations. Such exchange shall be made at the
Company's expense and without any charge to the holder. Until so exchanged, the
temporary Notes in all respects shall be entitled to the same benefits under
this Indenture as Definitive Notes authenticated and delivered under this
Indenture.
SECTION 2.10 CANCELLATION OF NOTES PAID, ETC.
All Notes surrendered for the purpose of payment, exchange or
registration of transfer, if surrendered to the Company or any Paying Agent or
any Note Registrar, shall be delivered to the Trustee and promptly cancelled by
the Trustee or, if surrendered to the Trustee,
20
promptly shall be cancelled by it; and no Notes shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee may destroy cancelled Notes and upon request will deliver a certificate
of such destruction to the Company.
SECTION 2.11 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
The Notes shall bear interest at the rate of 5.125% per annum,
payable semiannually on June 15 and December 15 of each year, commencing
December 15, 2005. Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months. Interest payments for the Notes will
include accrued interest from and including the Issue Date or from and including
the immediately preceding Interest Payment Date, as the case may be, to, but
excluding the Interest Payment Date or the Maturity Date, as the case may be.
The person in whose name any Note (or one or more Predecessor Notes), (including
any Note or Notes issued upon registration of transfer or exchange thereof) is
registered at the close of business on any Regular Record Date with respect to
any Interest Payment Date shall be entitled to receive the interest payable
thereon on such Interest Payment Date notwithstanding the cancellation of such
Note upon any registration of transfer or exchange thereof subsequent to such
Regular Record Date and prior to such Interest Payment Date, unless such
interest is not punctually paid or duly provided for on such Interest Payment
Date, in which case such defaulted interest shall be paid as described in
Section 2.11(i) or 2.11(ii), as applicable. Payment of interest on any Note may
be made as provided in Section 3.02.
If any Interest Payment Date or the Maturity Date, as the case may
be, falls on a day that is not a Business Day, the related payment of interest
or principal will be made on the next day that is a Business Day (with the same
force and effect as if made on the date such payment was due) and no interest
will accrue on the amount payable for the period from and after such Interest
Payment Date or Maturity Date, as the case may be.
Any interest on any Note which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date ("Defaulted Interest")
forthwith shall cease to be payable to the holder on the relevant Regular Record
Date by virtue of having been such holder; and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (i) or
(ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names such Notes (or their respective
Predecessor Notes) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Note and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as provided in this clause. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 nor less than
21
ten days prior to the date of the proposed payment and not less than ten
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee promptly shall notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first class, postage prepaid,
to each Noteholder at its address as it appears in the Note Register, not
less than ten days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been given as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered on such Special Record Date and shall no
longer be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest on
any such Note in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed,
and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section 2.11, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, that were carried by such other Note.
SECTION 2.12 ADD ON NOTES
The Company may, from time to time, subject to compliance with any
other applicable provisions of this Indenture, without notice to or consent of
the holders, create and issue pursuant to this Indenture additional notes ("Add
On Notes") having terms and conditions set forth in Appendix A identical to
those of the other outstanding Notes, except that Add On Notes:
(i) may have a different issue date from other outstanding
Notes;
(ii) may have a different amount of interest payable on the
first Interest Payment Date after issuance than is payable on other
outstanding Notes;
(iii) may have terms specified in the Add On Note Board
Resolution or Add On Note supplemental indenture for such Add On Notes
making appropriate adjustment to this Article Two and Appendix A (and
related definitions) applicable to such Add On Notes in order to conform
to and ensure compliance with the Securities Act (or other applicable
securities laws) and any registration rights or similar agreement
applicable to such Add On Notes, which are not adverse in any material
respect to the holder of any outstanding Notes (other than such Add On
Notes); and
22
(iv) may be entitled to additional interest as provided in
Section 2.13 not applicable to other outstanding Notes and may not be
entitled to such additional interest applicable to other outstanding
Notes.
SECTION 2.13 ADDITIONAL INTEREST UNDER REGISTRATION RIGHTS AGREEMENT
Under certain circumstances, the Company may be obligated to pay
additional interest to holders, all as and to the extent set forth in the Notes
substantially in the forms of Appendices A and B attached hereto.
The Trustee shall have no duty or responsibility for determining if
any additional interest is payable with respect to the Notes or if any such
additional interest is payable thereon, when such additional interest is payable
and the amount of such additional interest. The Company shall notify the Trustee
and Paying Agent in writing at least five days prior to each Interest Payment
Date whether additional interest is payable with respect to the Notes and, to
the extent such additional interest is payable, shall certify in such notice the
date such additional interest commenced to accrue, the applicable per annum
interest rate or rates applicable to such additional interest and the periods
such additional interest accrued at each such rate and the aggregate amount of
such additional interest payable on such Interest Payment Date.
ARTICLE THREE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01 PAYMENT OF PRINCIPAL AND INTEREST
The Company duly and punctually will pay or cause to be paid the
principal of, premium, if any, and interest on the Notes at the time and place
and in the manner provided in this Indenture and in the Notes. The Notes are not
entitled to the benefit of any sinking fund.
SECTION 3.02 OFFICES FOR NOTICES AND PAYMENTS, ETC.
So long as any Notes remain outstanding, the Company will maintain
an office or agency in the Borough of Manhattan, The City of New York, where the
Notes may be presented for payment, for registration of transfer and for
exchange as provided in this Indenture and where notices and demands to or upon
the Company in respect of the Notes or of this Indenture may be served. The
Company hereby initially designates as such office or agency the office or
agency of the Trustee at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Corporate
Trust Department, for all of the foregoing purposes until such time, and except
for as long as, the Company shall designate and maintain some other such office
or agency and give the Trustee 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 office or
agency of the Trustee in the Borough of Manhattan, The City of New York, and the
Company hereby initially appoints the Trustee at such office or agency as its
agent to receive all such presentations and demands.
23
In addition to such offices or agencies, the Company may from time
to time constitute and appoint one or more other offices or agencies for such
purposes with respect to the Notes and one or more paying agents for the payment
of the Notes, 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 in the Borough of Manhattan, The City of New
York, for payment of the Notes.
Notwithstanding any provisions of this Indenture or the Notes to the
contrary, at the option of the Company, payment of interest on any Note may be
made by check pursuant to the terms of such Note mailed to the address of the
Person entitled thereto as such address shall appear in the Note Register,
except that (i) a holder of $20,000,000 or more in aggregate principal amount of
Notes will be entitled to receive such payments by wire transfer within the
United States of immediately available funds if appropriate wire transfer
instructions shall have been received in writing by the Paying Agent not later
than ten days prior to the applicable Interest Payment Date and (ii) payments in
respect of the Global Notes shall be made by wire transfer of immediately
available funds to the accounts specified by the holders of the Global Notes.
Any such instructions shall be deemed valid and continue in full force and
effect unless revoked in writing.
SECTION 3.03 PROVISIONS AS TO PAYING AGENT
(a) The Company, prior to each due date of principal of, premium, if
any, or interest on the Notes, will deposit with the Paying Agent a sum
sufficient to pay the principal, premium, if any, or interest so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium, if any, or interest. The Company hereby initially appoints
the Trustee as Paying Agent. If the Company shall appoint a Paying Agent other
than the Trustee with respect to the Notes, the Company will notify the Trustee
of its making, or failure to make, any such payment; and the Company also shall
cause any 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 3.03, as follows:
(1) that it will hold all sums held by it as such agent for
the payment of the principal of, premium, if any, or interest on the Notes
(whether such sums have been paid to it by the Company or by any other
obligor on the Notes) in trust for the benefit of the Persons entitled
thereto;
(2) that it will give the Trustee prompt oral notice confirmed
in writing of any failure by the Company (or by any other obligor on the
Notes) to make any payment of the principal of, premium, if any, or
interest on the Notes when the same shall be due and payable; and
(3) that it will, at any time during the continuance of an
Event of Default, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held by it as such agent.
24
(b) If the Company shall act as its own Paying Agent with respect to
the Notes, on or before each due date of the principal of, premium, if any, or
interest on the Notes it will set aside, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay such principal,
premium, if any, or interest so becoming due and will promptly notify the
Trustee of any failure to take such action and of any failure by the Company (or
by any other obligor under the Notes) to make any payment of the principal of,
premium, if any, or interest on the Notes when the same shall become due and
payable.
(c) Notwithstanding anything in this Section 3.03 to the contrary,
the Company, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture or for any other reason, may pay or by Company Order
direct any Paying Agent to pay to the Trustee all sums held in trust by the
Company or any Paying Agent under this Indenture, such sums to be held by the
Trustee upon the trusts contained in this Indenture.
(d) Notwithstanding anything in this Section 3.03 to the contrary,
the agreement to hold sums in trust as provided in this Section 3.03 is subject
to Sections 10.03 and 10.04.
SECTION 3.04 STATEMENT AS TO COMPLIANCE
So long as any of the Notes are outstanding, the Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company, an Officers' Certificate stating, as to each signer of such
certificate, that:
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision; and
(2) to the best of his knowledge, based on such review, the
Company has complied with all its conditions and covenants under this
Indenture throughout such year, or, if there has been a default in the
compliance with any such condition or covenant, specifying each such
default known to him and the nature and status of such default.
SECTION 3.05 CORPORATE EXISTENCE
Except as otherwise provided in Article Nine, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any right
or franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Noteholders.
25
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
NOTEHOLDERS ON EVENT OF DEFAULT
SECTION 4.01 EVENTS OF DEFAULT
"Event of Default", when used herein with respect to the Notes,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be occasioned by the provisions of Article Twelve
or be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) default in the payment of any interest upon any of the Notes as
and when the same shall become due and payable, and continuance of such default
for a period of 30 days;
(b) default in the payment of the principal of any of the Notes as
and when the same shall become due and payable either at maturity, by
declaration or otherwise;
(c) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company in the Notes
or in this Indenture, and continuance of such failure for a period of 90 days
after the date on which written notice of such failure, requiring the Company to
remedy the same, shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the holders of at least 25% in aggregate principal
amount of the Notes at the time outstanding;
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part of
its property, or ordering the winding up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Company or for any substantial part of its property, or shall
make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due or shall take any corporate action
in furtherance of any of the foregoing.
If an Event of Default described in clause (d) or (e) above (each, a "Bankruptcy
Event of Default") occurs and is continuing, then and in each such case either
the Trustee or the holders of not less than 25% in aggregate principal amount of
the Notes then outstanding, by notice in writing to the Company (and to the
Trustee if given by Noteholders), may declare the principal
26
amount of all the Notes to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable. This
provision, however, is subject to the condition that, at any time after such a
declaration of acceleration, and before any judgment or decree for the payment
of the money due shall have been obtained or entered as hereinafter provided,
the holders of a majority in aggregate principal amount of the Notes then
outstanding, by written notice to the Company and to the Trustee, may waive all
defaults and rescind and annul such declaration and its consequences, if:
(1) the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay:
(A) all matured installments of interest on all the
Notes and the principal of any and all Notes that shall have become
due otherwise than by acceleration (with interest on overdue
installments of interest (to the extent that payment of such
interest is enforceable under applicable law) and on such principal
at the rate borne by the Notes, to the date of such payment or
deposit); and
(B) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 5.06; and
(2) any and all defaults with respect to Notes under this
Indenture, other than the nonpayment of principal of, premium, if any, and
accrued interest on Notes that shall have become due by acceleration,
shall have been cured or waived as provided in Section 4.07.
No such waiver or rescission and annulment shall extend or shall affect any
subsequent default or shall impair any right consequent thereon.
There is no right of acceleration upon the occurrence of an Event of
Default described in clauses (a), (b) or (c) above.
In case the Trustee or any Noteholder 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 or any
Noteholder, then and in every such case the Company, the Trustee and such
Noteholders, subject to any determination in such proceeding, shall be restored
respectively to their several positions and rights under this Indenture, and all
rights, remedies and powers of the Company, the Trustee and such Noteholders
shall continue as though no such proceeding had been taken.
27
SECTION 4.02 PAYMENT OF NOTES ON DEFAULT; SUIT THEREFOR
(a) In case default shall be made in the payment of (i) any
installment of interest upon any of the Notes as and when the same shall become
due and payable, and such default shall have continued for a period of 30 days,
or (ii) the principal of any of the Notes as and when the same shall have become
due and payable whether at Stated Maturity of the Notes, by declaration as
authorized by this Indenture or otherwise, then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders of the Notes,
the whole amount that then shall have become due and payable on all such Notes
for principal, premium, if any, or interest, or any combination thereof, as the
case may be, with interest upon the overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) upon the overdue
installments of interest, at the rate borne by the Notes; and, in addition, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent, attorneys and counsel.
(b) In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in 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 proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or any other
obligor on the Notes and collect in the manner provided by law out of the
property of the Company or any other obligor on the Notes, wherever situated,
the money adjudged or decreed to be payable.
(c) In case there shall be pending proceedings for the bankruptcy or
for the reorganization of the Company or any other obligor on the Notes under
Title 11 of the United States Code or any other applicable law, or in case a
receiver or trustee shall have been appointed for the property of the Company or
such other obligor, or in the case of any other similar judicial proceedings
relative to the Company or other obligor on the Notes, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Notes shall then be due and payable as expressed in
the Notes or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section 4.02,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of the
Notes, and, in case of any judicial proceedings, (i) to file such proofs of
claim and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Noteholders allowed in such judicial proceedings
relative to the Company or any other obligor on the Notes, its or their
creditors, or its or their property, and (ii) to collect and receive any money
or other property payable or deliverable on any such claims, and to distribute
the same after the deduction of its charges and expenses; and any receiver,
assignee or trustee in bankruptcy or reorganization is hereby authorized by each
of the Noteholders to make such payments to the Trustee, and in the event that
the Trustee shall consent to the making of such payment directly to the
Noteholders, to pay to the Trustee any amount due it for reasonable
28
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel and any other amounts due the Trustee under Section 5.06. To the
extent that such payment of reasonable compensation, expenses and counsel fees
out of the trust estate in any such proceedings shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other property which the
holders of the Notes may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
(d) Nothing contained in this Section 4.02 shall be deemed to
authorize the Trustee to authorize or consent to or adopt on behalf of any
Noteholder any plan of reorganization or arrangement affecting the Notes or the
rights of any Noteholder, or to authorize the Trustee to vote in respect of the
claim of any Noteholder in any such proceeding.
(e) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Trustee without the
possession of any of the Notes, or the production thereof in 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, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of the holders of the Notes.
SECTION 4.03 APPLICATION OF MONEY COLLECTED BY TRUSTEE
Any money collected by the Trustee with respect to the Notes
pursuant to Section 4.02 shall be applied in the following order, at the date or
dates fixed by the Trustee for the distribution of such money, upon presentation
of the Notes and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid, subject in each case to Article Twelve:
FIRST: to the payment of all amounts then due the Trustee under
Section 5.06;
SECOND: in case the principal of the outstanding Notes shall not
have become due and shall be unpaid, to the payment of interest on the Notes in
the order of the maturity of the installments of such interest; with interest
(to the extent enforceable under applicable law) upon the overdue installments
of interest at the rate borne by the Notes, such payments to be made ratably to
the persons entitled thereto; and
THIRD: in case the principal of the outstanding Notes shall have
become due, by declaration or otherwise, to the payment of the whole amount then
owing and unpaid upon the Notes for principal, premium, if any, and interest,
with interest on the overdue principal and (to the extent enforceable under
applicable law) upon overdue installments of interest at the rate borne by the
Notes; and in case such money shall be insufficient to pay in full the whole
amount so due and unpaid upon the Notes, then to the payment of such principal,
premium, if any, 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 Note over any other Note, ratably
to the aggregate of such principal and accrued and unpaid interest.
29
SECTION 4.04 PROCEEDINGS BY NOTEHOLDERS
No holder of any Note shall have any right 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 under this Indenture, unless such holder previously shall have given to
the Trustee written notice of default and of the continuance thereof, as
provided in Section 4.01, and unless also (i) the holders of not less than 25%
in aggregate principal amount of the Notes then outstanding shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee under this Indenture and shall have offered to the
Trustee such reasonable security or indemnity as the Trustee may require against
the costs, expenses and liabilities to be incurred in compliance with such
request, (ii) 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 (iii) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the holders
of a majority in principal amount of the outstanding Notes; it being understood
and intended, and being expressly covenanted by each Person who acquires and
holds a Note with every other such Person, that no one or more holders of Notes
shall have any right in any manner whatever by virtue of or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other holder of such Notes, 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 provided in this Section 4.04 and for the equal,
ratable and common benefit of all holders of Notes.
Notwithstanding any other provision of this Indenture, however, the
right of any holder of any Note to receive payment of the principal of, premium,
if any, and interest on such Note on or after the respective Stated Maturities,
or to institute suit for the enforcement of any such payment on or after such
respective dates against the Company, shall not be impaired or affected without
the consent of such holder.
SECTION 4.05 PROCEEDINGS BY TRUSTEE
In case of an Event of Default under this Indenture, the Trustee in
its discretion may proceed to protect and enforce its rights and the rights of
the Noteholders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any 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 proper remedy or legal or equitable right vested in the
Trustee by this Indenture or by law.
SECTION 4.06 REMEDIES CUMULATIVE AND CONTINUING; DELAY OR OMISSION NOT WAIVER
All rights, powers and remedies conferred upon or reserved to the
Trustee or to the Noteholders, to the extent permitted by law, shall be deemed
cumulative and not exclusive of any thereof or of any other rights, powers and
remedies available to the Trustee or the holders of the Notes, now or hereafter
existing, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture; and no
30
delay or omission of the Trustee or of any holder of any of the Notes to
exercise any such right, power or remedy shall impair any such right, power or
remedy, or shall be construed to be a waiver of any default or an acquiescence
in such default; and subject to the provisions of Section 4.04, every power and
remedy conferred upon or reserved to the Trustee or the Noteholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Noteholders. The assertion of any right, power or remedy shall
not prevent the concurrent assertion of any other right, power or remedy.
SECTION 4.07 DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY OF
NOTEHOLDERS
(a) The holders of a majority in aggregate principal amount of the
Notes affected (voting as one class) at the time outstanding determined in
accordance with Section 6.04 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; provided, however, that
(i) such direction may not be in conflict with law or this Indenture or expose
the Trustee to personal liability or be unduly prejudicial to the holders of the
Notes not joining in the direction, and (ii) the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with this Indenture
and such direction.
(b) Prior to any declaration that the principal of the outstanding
Notes is due and payable, the holders of a majority in aggregate principal
amount of the Notes at the time outstanding on behalf of the holders of all of
the Notes may waive any past default or Event of Default under this Indenture
and its consequences except a default under a covenant in this Indenture that,
pursuant to Section 8.02, cannot be modified without the consent of each holder
of a Note affected thereby. Upon any such waiver, the Company, the Trustee and
the holders of the Notes shall be restored to their former positions and rights
under this Indenture, respectively; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default under this Indenture shall
have been waived as permitted by this Section 4.07, such default or Event of
Default, for all purposes of the Notes and this Indenture, shall be deemed to
have been cured and to be not continuing.
SECTION 4.08 NOTICE OF DEFAULTS
The Trustee, within 90 days after the occurrence of a default with
respect to Notes, shall mail to all Noteholders, at their addresses shown on the
Note Register, notice of all such defaults known to the Trustee, unless such
defaults shall have been cured or waived before the giving of such notice (the
term "defaults" for the purpose of this Section 4.08 being defined to mean any
events which constitute or after notice or lapse of time or both would
constitute an Event of Default); provided that, except in the case of default in
the payment of the principal of, premium, if any, or interest on any of the
Notes, 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 Noteholders.
31
SECTION 4.09 UNDERTAKING TO PAY COSTS
All parties to this Indenture agree, and each holder of any Note by
his acceptance thereof shall be deemed to have agreed, that any court in its
discretion may require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit and that such court in its discretion
may assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; provided, however, that the
provisions of this Section 4.09 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than 10% in principal amount of the outstanding
Notes, or to any suit instituted by any Noteholder for the enforcement of the
payment of the principal of, premium, if any, or interest on any Note on or
after their respective Stated Maturities.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.01 DUTIES AND RESPONSIBILITIES OF TRUSTEE
In case an Event of Default has occurred (which has not been cured
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 affairs.
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, its own willful misconduct or any action or failure to act taken or
omitted by it in bad faith, except that:
(a) except during the continuance of an Event of Default:
(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,
opinions or orders furnished to the Trustee and conforming to the
requirements of this Indenture; but, in the case of any such certificates,
opinions or orders that by any provisions of this Indenture 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;
32
(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; and
(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 not less than a majority in principal amount of the Notes at the
time outstanding (determined as provided in Section 6.04) 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.
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 or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not 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
5.01.
The provisions of this Section 5.01 are in furtherance of and
subject to Sections 315 and 316 of the Trust Indenture Act.
SECTION 5.02 RELIANCE ON DOCUMENTS, OPINIONS, ETC.
Subject to the applicable provisions of the Trust Indenture Act and
in furtherance thereof and subject to the provisions of Section 5.01:
(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, bond, debenture 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 specifically prescribed); and any
resolution of the Board of Directors 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 any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken or omitted by it under this Indenture in good faith and in accordance with
such Opinion of Counsel;
(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 Noteholders
33
pursuant to the provisions of this Indenture, unless such Noteholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that 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, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books and
records of the Company to the extent reasonably necessary to verify such facts
or matters;
(g) the Trustee may execute any of the trusts or powers under this
Indenture or perform any duties under this Indenture 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 by it
with due care under this Indenture;
(h) the Trustee is not required to give any bond or surety with
respect to the performance of its duties or the exercise of its powers under
this Indenture;
(i) the Trustee's rights, powers, indemnities, immunities and
protections from liability and its rights to compensation and indemnification in
connection with the performance of its duties under this Indenture shall extend
to (1) the Trustee, whether serving in any other capacity hereunder, including
without limitation, in the capacity of Paying Agent, Note Registrar or
Authenticating Agent, and (2) the Trustee's officers, directors, agents and
employees. Such immunities and protections and rights to indemnification,
together with the Trustee's right to compensation, shall survive the Trustee's
resignation or removal, the discharge of this Indenture and final payment of the
Notes;
(k) the Trustee shall have no responsibility for any information in
any offering document or other disclosure material distributed with respect to
any series of Notes other than information provided by the Trustee to the
Company; and
(l) notwithstanding anything else herein contained, whenever any
provision of this Indenture indicates that any confirmation of a condition or
event is qualified by the words "to the knowledge of" or "known to" the Trustee
or other words of similar meaning, said words shall mean and refer to the
current awareness of one or more Responsible Officers of the Trustee.
SECTION 5.03 NO RESPONSIBILITY FOR RECITALS, ETC.
The recitals contained in this Indenture and in the Notes (except in
the Trustee's certificate of authentication) shall be taken as the statements of
the Company, and the Trustee
34
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
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee.
SECTION 5.04 TRUSTEE, PAYING AGENTS OR NOTE REGISTRAR MAY OWN NOTES
Subject to the applicable provisions of the Trust Indenture Act, the
Trustee or any Paying Agent or Note Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights it would
have if it were not Trustee, Paying Agent or Note Registrar.
SECTION 5.05 MONEY TO BE HELD IN TRUST
Subject to the provisions of Sections 10.03 and 10.04, all money
received by the Trustee, until used or applied as herein provided, shall be held
in trust for the purposes for which it was received. Money held by the Trustee
need not be segregated from other funds except as provided by law. The Trustee
shall be under no liability for interest on any money received by it under this
Indenture, provided that the Trustee pays to the Persons entitled thereto all
such money when due and payable.
SECTION 5.06 COMPENSATION AND EXPENSES OF TRUSTEE
The Company will pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation for all services rendered
by it under this Indenture (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an 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 accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the reasonable expenses and disbursements of its counsel and of all persons
not regularly in its employ) except any such expense, disbursement or advance as
may be attributable to its negligence, bad faith or willful misconduct. The
Company also covenants to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, bad faith
or willful misconduct on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including the
reasonable costs and expenses of defending itself against any claim of liability
in connection with the exercise, performance or non-performance of any of its
powers under this Indenture. The obligations of the Company under this Section
5.06 shall constitute additional indebtedness under this Indenture and shall
survive the termination of this Indenture.
SECTION 5.07 OFFICERS' CERTIFICATE AS EVIDENCE
Subject to the provisions of Section 5.01, 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 or
omitting any action under this Indenture, such matter (unless other evidence in
respect thereof be herein specifically prescribed), in the absence of
35
negligence, bad faith or willful misconduct on the part of the Trustee, may be
deemed to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such Officers' Certificate, in the absence of
negligence, bad faith or willful misconduct on the part of the Trustee, shall be
full warrant to the Trustee for any action taken or omitted by it under the
provisions of this Indenture upon the faith of such Officers' Certificate.
SECTION 5.08 ELIGIBILITY OF TRUSTEE
The Trustee under this Indenture shall at all times be a corporation
organized and doing business under the laws of the United States or any State
thereof or of the District of Columbia (or a corporation or other person
permitted to act as Trustee by the Commission) authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $25,000,000 and subject to supervision or examination by Federal, State or
District of Columbia authority. If such corporation files 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 5.08
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 filed. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 5.08, the Trustee shall resign
immediately in the manner and with the effect specified in Section 5.09. Neither
the Company nor any person directly or indirectly controlling, controlled by, or
under common control with the Company shall serve as Trustee under this
Indenture.
SECTION 5.09 RESIGNATION OR REMOVAL OF TRUSTEE
(a) The Trustee may resign at any time by giving written notice of
such resignation to the Company and by mailing notice of such resignation to the
holders of Notes at their addresses as they shall appear on the Note Register.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act after written request therefor
by the Company or by any Noteholder who has been a bona fide holder of a
Note or Notes for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.08 and shall fail to resign after written
request therefor by the Company or by any such Noteholder, 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 a public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
36
then, in any such case, the Company may remove the Trustee by written
instrument, executed by Company Order authorized by the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor Trustee (with written notice of such removal mailed to the
holders of Notes at their address as they shall appear on the Note Register),
or, subject to the provisions of Section 4.09, any Noteholder who has been a
bona fide holder of a Note or Notes for at least six months, on behalf of
himself and all others similarly situated, may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(c) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company promptly shall appoint a successor Trustee by a Company Order authorized
by the Board of Directors, one copy of which instrument shall be delivered to
the retiring Trustee and one copy to the successor Trustee. If, within one year
after such resignation, removal or incapability or the occurrence of such
vacancy, a successor Trustee shall be appointed by the holders of a majority in
principal amount of the Notes (voting as a single class) at the time outstanding
by instrument or instruments delivered to the Company and the retiring Trustee,
the successor Trustee so appointed, forthwith upon its acceptance of such
appointment, shall become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been so
appointed by the Company or the Noteholders and accepted appointment in the
manner provided in Section 5.10 within 60 days after notice of the resignation
or removal of the Trustee is mailed to the Noteholders, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Trustee, or any Noteholder who has been a bona fide holder of a Note
or Notes for at least six months, subject to the provisions of Section 4.09, on
behalf of himself and all others similarly situated, may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(d) The holders of a majority in aggregate principal amount of the
Notes (voting as a single class) at the time outstanding at any time, upon
notice to the Trustee, may remove the Trustee.
(e) Any removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 5.09 shall become
effective upon acceptance of appointment by the successor Trustee as provided in
Section 5.10. Any resignation of the Trustee shall become effective only upon
the appointment of a successor Trustee and upon the acceptance of appointment by
the successor Trustee as provided in Section 5.10.
SECTION 5.10 ACCEPTANCE BY SUCCESSOR TRUSTEE
Any successor Trustee appointed as provided in Section 5.09 shall
execute, acknowledge and deliver to the Company and to its predecessor Trustee
an instrument accepting such appointment under this Indenture, and thereupon the
resignation or removal of the predecessor Trustee 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 of its
predecessor under this Indenture, with like effect as if originally named as
Trustee in this Indenture; but, nevertheless, on the written request of the
Company or of the successor Trustee,
37
the Trustee ceasing to act, upon payment of any amounts then due it pursuant to
the provisions of Section 5.06, shall execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act and shall transfer, assign and deliver to such successor all
property and money held by such predecessor Trustee under this Indenture. Upon
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,
nevertheless shall retain a lien upon all property or funds held or collected by
such Trustee to secure any amounts then due it pursuant to the provisions of
Section 5.06.
No successor Trustee shall accept appointment as provided in this
Section 5.10 unless at the time of such acceptance such successor Trustee shall
be qualified under the provisions of Section 310(b) of the Trust Indenture Act
and eligible under the provisions of Section 5.08.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 5.10, the Company shall mail notice of the succession of such
Trustee under this Indenture to the holders of Notes at their addresses as they
shall appear on the Note Register. If the Company fails to mail such notice
within ten days after acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be mailed at the expense of the
Company.
SECTION 5.11 SUCCESSION BY MERGER, ETC.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor Trustee under this Indenture without the
execution or filing of any paper or any further act on the part of any of the
parties to this Indenture provided such Person shall be qualified under the
provisions of Section 310(b) of the Trust Indenture Act and eligible under the
provisions of Section 5.08.
In case at the time such successor Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been authenticated
but not delivered, any such successor Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor Trustee may authenticate such Notes either in the
name of any predecessor Trustee under this Indenture 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 Notes 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
authenticate Notes in the name of any predecessor Trustee shall apply only to
its successor or successors by merger, conversion or consolidation.
38
ARTICLE SIX
CONCERNING THE NOTEHOLDERS
SECTION 6.01 ACTION BY NOTEHOLDERS
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Notes 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
in such action may be evidenced (i) by any instrument or any number of
instruments of similar tenor executed by Noteholders in person or by agent or
proxy appointed in writing, (ii) by the record of the holders of Notes voting in
favor of such action at any meeting of Noteholders duly called and held in
accordance with the provisions of this Article Six or (iii) by a combination of
such instrument or instruments and any such record of such a meeting of
Noteholders. The Company may set a record date for purposes of determining the
identity of holders entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture, which record date shall be the
later of ten days prior to the first solicitation of such consent or the date of
the most recent list of holders furnished to the Trustee prior to such
solicitation pursuant to the provisions of Section 312(a) of the Trust Indenture
Act. If a record date is fixed, those persons who were holders of Notes at such
record date (or their duly designated proxies), and only those persons, shall be
entitled to take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such persons continue to be holders after such
record date. No such vote or consent shall be valid or effective if such vote
occurs or such consent is obtained more than 120 days after such record date.
SECTION 6.02 PROOF OF EXECUTION BY NOTEHOLDERS
(a) Subject to the provisions of Sections 5.01, 5.02 and 7.05, proof
of the execution of any instrument by a Noteholder or his agent or proxy shall
be sufficient if made in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be satisfactory
to the Trustee.
(b) The ownership of Notes shall be proved by the Note Register or
by a certificate of the Note Registrar.
(c) The record of any Noteholders' meeting shall be proved in the
manner provided in Section 7.07.
SECTION 6.03 WHO ARE DEEMED ABSOLUTE OWNERS
Prior to due presentation of a Note for registration of transfer,
the Company, the Trustee, any Paying Agent and any Note Registrar may treat the
Person in whose name such Note is registered as owner of such Note for the
purpose of receiving payment of principal of, premium, if any, and (subject to
Section 2.11) interest on such Note and for all other purposes whatsoever,
whether or not such Note is overdue and notwithstanding any notation of
ownership
39
or other writing on such Note made by anyone other than the Company or any Note
Registrar, and neither the Company, the Trustee, any Paying Agent nor any Note
Registrar shall be affected by any notice to the contrary. All such payments so
made to any such holder as shown in the Note Register, or upon the order of such
holder, shall be valid and, to the extent of the sum so paid, effectual to
satisfy and discharge the liability for money payable upon any such Note.
None of the Company, the Trustee, any Paying Agent or any Note
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 6.04 COMPANY OWNED NOTES DISREGARDED
In determining whether the holders of the requisite aggregate
principal amount of Notes have concurred in any direction, consent, waiver or
other action under this Indenture, Notes that are owned by the Company (other
than any Notes held in a fiduciary or agency capacity) or any other obligor on
the Notes 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 Notes shall be disregarded and deemed not to be outstanding for the
purpose of any such determination; provided, however, that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action, only Notes that the Trustee knows
are so owned shall be so disregarded.
SECTION 6.05 REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND
At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 6.01, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Notes specified in this
Indenture required to take such action, any holder of a Note may revoke such
action so far as it concerns such Note by filing written notice with the Trustee
at the principal office of the Trustee and upon proof of holding as provided in
Section 6.02; provided that the serial number of such Note must show that the
holder of such Note consented to such action. Except as provided in this Section
6.05 any such action taken by the holder of any Note shall be conclusive and
binding upon such holder and upon all future holders and owners of such Note,
irrespective of whether or not any notation in regard thereto is made upon such
Note or any Note issued in exchange or substitution for such Note.
40
ARTICLE SEVEN
NOTEHOLDERS' MEETINGS
SECTION 7.01 PURPOSES OF MEETINGS
A meeting of Noteholders may be called at any time and from time to
time pursuant to the provisions of this Article Seven 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 under this Indenture and its consequences, or to take any other
action authorized to be taken by Noteholders pursuant to any of the
provisions of Article Four;
(2) to remove the Trustee and nominate a successor Trustee
pursuant to the provisions of Article Five;
(3) to consent to the execution of an indenture or indentures
supplemental to this Indenture pursuant to the provisions of Section 8.02;
or
(4) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of the
Notes under any other provision of this Indenture or under applicable law.
SECTION 7.02 CALL OF MEETINGS BY TRUSTEE
The Trustee at any time may call a meeting of Noteholders to take
any action specified in Section 7.01, to be held at such time and at such place
in The City of New York as the Trustee shall determine. Notice of every meeting
of the Noteholders, 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
to holders, if any, of Notes affected at their addresses as they shall appear on
the Note Register. Such notice to holders of Notes shall be mailed not less than
20 nor more than 90 days prior to the date fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if the
holders of all Notes then outstanding are present in person or by proxy or if
notice is waived before or after the meeting by the holders of all outstanding
Notes, and if the Company and the Trustee are either present by duly authorized
representatives or, before or after the meeting, have waived notice.
SECTION 7.03 CALL OF MEETINGS BY COMPANY OR NOTEHOLDERS
In case at any time the Company, pursuant to a resolution of its
Board of Directors, or the holders of at least 10% in aggregate principal amount
of the Notes then outstanding that may be affected by the action proposed to be
taken, shall have requested the Trustee to call a meeting of Noteholders, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed or published (as
41
appropriate under Section 7.02) the notice of such meeting within 20 days after
receipt of such request, then the Company or such Noteholders may determine the
time and the place in The City of New York for such meeting and may call such
meeting to take any action authorized in Section 7.01, by mailing or publishing
notice of such meeting as provided in Section 7.02.
SECTION 7.04 QUALIFICATIONS FOR VOTING
To be entitled to vote at any meeting of Noteholders a person shall
(i) be a holder of one or more Notes as set forth in the Note Register or (ii)
be a person appointed by an instrument in writing as proxy by a holder of one or
more Notes, subject to the provisions of Section 6.02. The only persons who
shall be entitled to be present or to speak at any meeting of Noteholders 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.
SECTION 7.05 REGULATIONS
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Noteholders, in regard to proof of the holding of Notes 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.
(b) The Trustee, by an instrument in writing, shall appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Noteholders as provided in Section 7.03, in which case the
Company or the Noteholders calling the meeting, as the case may be, in like
manner shall appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Notes represented at the meeting and entitled to
vote.
(c) Subject to the provisions of Section 6.04, at any meeting each
Noteholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Notes.
(d) No vote shall be cast or counted at any meeting in respect of
any Note challenged as not outstanding and ruled by the chairman of the meeting
to be not outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Notes held by him or instruments in writing duly
designating him as the person to vote on behalf of other Noteholders. Any
meeting of Noteholders duly called pursuant to the provisions of Section 7.02 or
7.03 may be adjourned from time to time by a majority of those present and the
meeting may be held as so adjourned without further notice.
42
SECTION 7.06 QUORUM
The Persons entitled to vote a majority in principal amount of the
outstanding Notes affected by the action proposed to be taken shall constitute a
quorum for a meeting of such Noteholders. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting, if convened at
the request of holders of Notes, shall be dissolved. In the absence of a quorum
in any other case the meeting may be adjourned for a period of not less than ten
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than ten
days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting shall
be given as provided in Section 7.02, except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
outstanding Notes affected by the action proposed to be taken which shall
constitute a quorum.
SECTION 7.07 VOTING
The vote upon any resolution submitted to any meeting of Noteholders
shall be by written ballots on which shall be subscribed the signatures of the
holders of Notes or of their representatives by proxy and the principal amount
of the Notes 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 Noteholders shall be prepared by the secretary of the meeting and
there shall be attached to such record the original reports of the inspectors of
votes on any vote by ballot taken at such meeting and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that such notice was mailed or published as provided in
Section 7.02 or 7.03. The record shall show the principal amount of the Notes
voting in favor of or against any resolution. The record shall be signed and
verified by the affidavits of the permanent chairman and 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.
Any record so signed and verified shall be conclusive evidence of
the matters stated in such record.
SECTION 7.08 NO DELAY OF RIGHTS BY MEETING
Nothing in this Article Seven shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Noteholders or any
rights expressly or impliedly conferred under this Article Seven to make such
call, any hindrance or delay in the exercise of any right or rights conferred
upon or reserved to the Trustee or to the Noteholders under any of the
provisions of this Indenture or of the Notes.
43
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS
The Company, when authorized by the resolutions of the Board of
Directors, and the Trustee from time to time and at any time may enter into an
indenture or indentures supplemental to this Indenture for one or more of the
following purposes:
(a) to evidence the succession of another Person to the Company, or
successive successions, and the assumptions by the successor Person of the
covenants, agreements and obligations of the Company pursuant to Article Nine;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of the Notes as the
Board of Directors and the Trustee shall consider to be for the protection of
the holders of the Notes, 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 set forth in this Indenture; provided, however, that
in respect of 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 cure any ambiguity or to correct or supplement any provision
contained in this Indenture or in any supplemental indenture that may be
defective or inconsistent with any other provision contained in this Indenture
or in any supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture, in each case that shall not
adversely affect the interests of the holders of the Notes; and
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture; provided, however, that such
action shall not adversely affect the interests of the holders of the Notes.
The Trustee hereby is authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations that may be contained in such supplemental indenture
and to accept the conveyance, transfer and assignment of any property under such
supplemental indenture, but the Trustee shall not be obligated to, but may in
its discretion, enter into any such supplemental indenture that affects the
Trustee's own rights, duties, privileges, protections or immunities under this
Indenture or otherwise.
44
Any supplemental indenture authorized by the provisions of this
Section 8.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Notes at the time outstanding, notwithstanding any
provisions of Section 8.02.
SECTION 8.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS
With the consent (evidenced as provided in Section 6.01) of the
holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding affected by such supplemental indenture or indentures,
the Company, when authorized by the resolutions of the Board of Directors, and
the Trustee from time to time and at any time may enter into an indenture or
indentures supplemental to this Indenture for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the holders of the
Notes; provided, however, that without the consent of the holder of each Note
affected thereby no such supplemental indenture shall: (a) change the Stated
Maturity of the principal of or any installment of interest on any Note, or
reduce the principal amount of any Note or rate of interest on any Note or the
amount payable upon repurchase thereof, or the coin or currency in which any
Note or any interest on any Note is payable, or impair the right to institute
suit for the enforcement of any such payment on or after its Stated Maturity;
(b) change the place of payment of principal of any Note; (c) impair the right
to institute suit for the enforcement of any payment on or with respect to any
Note; (d) reduce the percentage in principal amount of outstanding Notes the
consent of whose holders is required for any such supplemental indenture or the
consent of whose holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults under this Indenture and their
consequences provided for in this Indenture; (e) modify the provisions of
Section 4.01 providing for the rescinding and annulment of a declaration
accelerating the maturity of the Notes, or any of the provisions of this Section
8.02 or Section 4.07(b), except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or waived; or
(f) modify any of the provisions of Article Twelve.
Upon the request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Noteholders 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 Noteholders under
this Section 8.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 8.03 COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF SUPPLEMENTAL
INDENTURES
Any supplemental indenture executed pursuant to the provisions of
this Article Eight shall comply with the Trust Indenture Act as then in effect.
Upon the execution of any supplemental indenture pursuant to the provisions of
this Article Eight, this Indenture shall
45
be and be deemed to be modified and amended in accordance with such supplemental
indenture and the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of the Notes affected thereafter shall be determined, exercised and enforced
under this Indenture 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.
SECTION 8.04 NOTATION ON NOTES
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article Eight may bear
a notation in form acceptable to the Trustee as to any matter provided for in
such supplemental indenture.
SECTION 8.05 EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE FURNISHED
TRUSTEE
The Trustee, subject to the provisions of Sections 5.01 and 5.02,
shall at its request receive an Officers' Certificate and an Opinion of Counsel
as conclusive evidence that any supplemental indenture executed pursuant to this
Article Eight complies with the requirements of this Article Eight.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 9.01 COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
or which leases the properties and assets of the Company substantially as
an entirety shall be organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia
and expressly shall assume, by a supplemental indenture executed and
delivered to the Trustee in form satisfactory to the Trustee, the due and
punctual payment of the principal of, premium, if any, and interest on the
Notes, according to their terms, and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
46
(3) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and supplemental
indenture comply with this Article Nine and that all conditions precedent
provided for in this Indenture relating to such transaction have been
complied with.
SECTION 9.02 SUCCESSOR PERSON SUBSTITUTED
Upon any consolidation by the Company with or merger by the Company
into any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
9.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company in this Indenture, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Notes.
Such successor Person may cause to be signed, and may issue either
in its own name or in the name of the Company prior to such succession, any of
or all of the Notes issuable under this Indenture which theretofore shall not
have been signed by the Company and delivered to the Trustee; and, upon the
order of such successor Person instead of upon the Company Order, and subject to
all the terms, conditions and limitations in this Indenture, the Trustee shall
authenticate and shall deliver any Notes that previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication
and any Notes which such successor Person thereafter shall cause to be signed
and delivered to the Trustee on its behalf for that purpose. All the Notes so
issued shall have in all respects the same legal rank and benefit under this
Indenture as the Notes theretofore or thereafter issued in accordance with the
terms of this Indenture as though all such Notes had been issued at the date of
the execution of this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 10.01 DISCHARGE OF INDENTURE
When (a) the Company shall deliver to the Trustee for cancellation
all Notes theretofore authenticated (other than any Notes that shall have been
mutilated, destroyed, lost or stolen and in lieu of or in substitution for which
other Notes shall have been authenticated and delivered) and not theretofore
canceled, or (b) all the Notes not theretofore canceled or delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year and the Company shall deposit
with the Trustee, in trust, funds sufficient to pay at their Stated Maturity all
the Notes (other than any Notes that shall have been mutilated, destroyed, lost
or stolen and that have been replaced or paid as provided in Section 2.08) not
theretofore canceled or delivered to the Trustee for cancellation, including
47
principal, premium, if any, and interest due or to become due prior to such
Stated Maturity, but excluding, however, the amount of any money for the payment
of principal of, premium, if any, or interest on the Notes
(1) theretofore deposited with the Trustee and repaid by the
Trustee to the Company in accordance with the provisions of Section 10.04,
or
(2) paid to any State or the District of Columbia pursuant to
its unclaimed property or similar laws, and if in either case the Company
also shall pay or cause to be paid all other sums payable under this
Indenture by the Company
then this Indenture shall cease to be of further effect with respect to the
Notes, and the Trustee, on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel as required by Section 13.05 and at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to the Notes. The
obligations of the Company to the Trustee under Section 5.06 shall survive the
termination of this Indenture.
The Trustee shall notify the Noteholders, at the expense of the
Company, of the immediate availability of the amount referred to in clause (b)
of this Section 10.01 by mailing a notice, first class postage prepaid, to the
holders of Notes at their addresses as they appear on the Note Register.
SECTION 10.02 DEPOSITED MONEY TO BE HELD IN TRUST BY TRUSTEE
Subject to Section 10.04, all money deposited with the Trustee
pursuant to Section 10.01 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company if
acting as its own Paying Agent, except as provided in Section 3.02), to the
holders of the particular Notes for the payment of which such money has been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest.
SECTION 10.03 PAYING AGENT TO REPAY MONEY HELD
Upon the satisfaction and discharge of this Indenture all money then
held by any Paying Agent (other than the Trustee), upon demand of the Company,
shall be repaid to it or paid to the Trustee, and thereupon such Paying Agent
shall be released from all further liability with respect to such money.
SECTION 10.04 RETURN OF UNCLAIMED MONEY
Any money deposited with or paid to the Trustee or any Paying Agent
for payment of the principal of, premium, if any, or interest on Notes, or then
held by the Company in trust for the payment of the principal of, premium, if
any, or interest on Notes, and not applied but remaining unclaimed by the
holders of Notes for two years after the date upon which the principal, premium,
if any, or interest on such Notes, as the case may be, shall have become due
48
and payable, shall be repaid to the Company by the Trustee on demand or, if then
held by the Company, shall be discharged from such trust, and all liability of
the Trustee thereupon shall cease; and the holder of any of such Notes
thereafter, as an unsecured general creditor, shall look only to the Company for
payment of such Notes, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Company as trustee
thereof, thereupon shall cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, at the expense
of the Company, shall mail to each holder of Notes notice that such money
remains unclaimed and that, after a date specified in such notice, which shall
not be less than 30 days from the date of such mailing, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 10.05 DISCHARGE OF INDENTURE AS TO NOTES
(a) The Company shall be deemed to have paid and discharged the
entire indebtedness on all the Notes at the time outstanding and, upon Company
Order, the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction, discharge and defeasance of such
indebtedness, when:
(1) with respect to all Notes at the time outstanding, the
Company shall have deposited or caused to be deposited irrevocably with
the Trustee as trust funds in trust, U.S. dollars, U.S. Government
Obligations or a combination thereof, in an amount that through the
payment of interest and principal and premium in respect thereof in
accordance with their terms will provide (without any reinvestment of such
interest or principal), not later than one Business Day before the due
date of any payment in respect of the Notes, money in an amount sufficient
(in the case of a deposit including any U.S. Government Obligations, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee at or prior to the time of such deposit) to pay and discharge each
installment of principal of, premium, if any, and interest on, the
outstanding Notes on the dates such installments of principal and interest
are due or upon the Stated Maturity thereof;
(2) no Event of Default or event (including such deposit)
which, with notice or lapse of time, or both, would become an Event of
Default with respect to the Notes shall have occurred and be continuing on
the date of such deposit as evidenced to the Trustee in an Officers'
Certificate delivered concurrently with such deposit to the Trustee;
(3) the Company shall have paid or caused to be paid all other
sums due and payable to the Trustee under Section 5.06 and all sums
payable with respect to the Notes at the time outstanding;
(4) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound, or the
Company has obtained a waiver of any such breach, violation or default;
49
(5) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that holders of the Notes will not recognize
income, gain or loss for Federal income tax purposes as a result of the
Company's exercise of its option under this Section 10.05 and will be
subject to Federal income tax on the same amount and in the manner and at
the same times as would have been the case if such option had not been
exercised and, in the case of the Notes being discharged, accompanied by a
ruling to that effect received from or published by the Internal Revenue
Service; and
(6) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction,
discharge and defeasance of the entire indebtedness on all Notes at the
time outstanding have been complied with.
(b) "U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America which in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof.
(c) Upon the satisfaction of the conditions set forth in this
Section 10.05 with respect to all the Notes at the time outstanding, the terms
and conditions of the Notes, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company (except as to any surviving rights of conversion or
registration of transfer or exchange and rights relating to mutilated,
destroyed, lost and stolen Notes pursuant to Section 2.08; provided, however,
that the Company shall not be discharged from any payment obligations in respect
of Notes which are deemed not to be outstanding under clause (c) of the
definition thereof if such obligations continue to be valid obligations of the
Company under applicable law.
SECTION 10.06 REPAYMENT TO COMPANY OF DEPOSITS MADE PURSUANT TO SECTION 10.05
After the payment in full of the entire indebtedness of Notes with
respect to which a deposit has been made with the Trustee pursuant to Section
10.05, the Trustee and any Paying Agent upon Company Order promptly shall return
to the Company any money or U.S. Government Obligations held by them that are
not required for the payment of the principal of, premium, if any, and interest
on the Notes.
SECTION 10.07 DEPOSITS IRREVOCABLE
Any deposits with the Trustee referred to in Sections 10.01 and
10.05 shall be irrevocable.
50
SECTION 10.08 REINSTATEMENT
If the Trustee is unable to apply any money or U.S. Government
Obligations in accordance with Section 10.01 or 10.05 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 10.01 or 10.05
until such time as the Trustee is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 10.01 or 10.05.
ARTICLE ELEVEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 11.01 INDENTURE AND NOTES SOLELY CORPORATE OBLIGATIONS
No recourse for the payment of the principal of, premium, if any, or
interest on any Note, or for any claim based on any Note or otherwise in respect
of any Note, and no recourse under or upon any obligation, covenant or agreement
of the Company in this Indenture or in any Note, or because of the creation of
any indebtedness represented by any Note, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor Person, either directly or through the Company or
any successor Person, 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 all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Notes.
ARTICLE TWELVE
SUBORDINATION OF SECURITIES
SECTION 12.01 AGREEMENT TO SUBORDINATE
The Company, for itself, its successors and assigns, covenants and
agrees, and each holder of a Note likewise covenants and agrees by his
acceptance thereof, that the obligation of the Company to make any payment on
account of the principal of (and premium, if any) and interest on each and all
of the Notes shall be subordinate and junior in right of payment to the
Company's obligations to the holders of Senior Indebtedness to the extent
provided herein, and that in the case 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, all
obligations to holders of Senior Indebtedness shall be entitled to be paid
in full before any payment shall be made on account of the principal of (and
premium, if any) or interest on the Notes. In the event of any such proceeding,
after payment in full of all sums owing with respect to Senior Indebtedness, the
holders of the Notes, together with the holders of any obligations of the
Company Ranking on a Parity with the Notes, shall be entitled to be paid
51
from the remaining assets of the Company the amounts at the time due and owing
on account of unpaid principal of (and premium, if any) and interest on the
Notes before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or any obligations of
the Company Ranking Junior to the Notes. In addition, subject to the provisions
of Section 12.03, 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 Notes, shall be received by the
Trustee or any holder of the Notes before all Senior Indebtedness is paid in
full and if such Noteholder or the Trustee, as the case may be, receiving such
payment is aware at the time or receipt that all Senior Indebtedness has not
been paid in full, then such payment or distribution shall, if received by any
Noteholder, be held in trust for the benefit of the holders of Senior
Indebtedness or, if received by the Trustee, shall be held by it and delivered
forthwith to the trustee in bankruptcy, receiver, assignee, agent or other
Person making payment or distribution of the assets of the Company, and, in each
case, shall be applied to the payment of all Senior Indebtedness remaining
unpaid, until all such Senior Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness. For purposes of this paragraph only, the words, "cash,
property or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or any other
company provided for by a plan of reorganization or readjustment which are
subordinated in right of payment to all Senior Indebtedness which may at the
time be outstanding to substantially the same extent as, or to a greater extent
than, the Notes are so subordinated as provided in this Article Twelve.
The subordination provisions of the foregoing paragraph shall not be
applicable to amounts at the time due and owing on the Notes on account of the
unpaid principal of (and premium, if any) or interest on the Notes for the
payment of which funds have been deposited in trust with the Trustee or have
been set aside by the Company in trust in accordance with the provisions of this
Indenture; nor shall such provisions impair any rights, interests, remedies or
powers of any secured creditor of the Company in respect of any security the
creation of which is not prohibited by the provisions of this Indenture.
If there shall have occurred and be continuing (a) a default in any
payment with respect to any Senior Indebtedness or (b) an event of default with
respect to any Senior Indebtedness as a result of which the maturity thereof is
accelerated, unless and until such payment default or event of default shall
have been cured or waived or shall have ceased to exist, no payments shall be
made by the Company with respect to the principal of (or premium, if any) or
interest on the Notes. The provisions of this paragraph shall not apply to any
payment with respect to which the first paragraph of this Section 12.01 would be
applicable.
The securing of any obligations of the Company Ranking on a Parity
with the Notes or obligations Ranking Junior to the Notes shall not be deemed to
prevent such obligations from constituting obligations of the Company Ranking on
a Parity with the Notes or obligations Ranking Junior to the Notes.
52
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the conveyance or transfer of its properties and assets substantially as an
entirety to another Person upon the terms and conditions set forth in Article
Nine shall not be deemed a dissolution, winding-up, liquidation, reorganization,
assignment for the benefit of creditors or marshalling of assets and liabilities
of the Company for the purposes of this Section 12.01 if the Person formed by
such consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer such properties and assets substantially as
an entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance, or transfer, comply with the conditions set forth in Article Nine.
SECTION 12.02 OBLIGATION OF THE COMPANY UNCONDITIONAL
Nothing contained in this Article Twelve or elsewhere in this
Indenture is intended to or shall impair, as between the Company and the holders
of the Notes, the obligation of the Company, which is absolute and
unconditional, to pay the holders of the Notes the principal of (and premium, if
any) and interest on the Notes when, where and as the same shall become due and
payable, all in accordance with the terms of the Notes and this Indenture, or is
intended to or shall affect the relative rights of the holders of the Notes and
creditors other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the holder of any Note from exercising
all remedies otherwise permitted by applicable law upon an Event of Default
under this Indenture, subject to the rights, if any, under this Article Twelve
of the holders of Senior Indebtedness in respect of cash, property, or
securities of the Company received upon the exercise of any such remedy.
SECTION 12.03 NOTICE TO TRUSTEE OF FACTS PROHIBITING PAYMENT
The Company shall give prompt written notice to a Responsible
Officer of the Trustee located at the Corporate Trust Office of the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Notes. Notwithstanding the provisions of
this Article Twelve or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee in respect of the Notes, unless
and until the Trustee shall have received at its Corporate Trust Office written
notice thereof from the Company or a holder of Senior Indebtedness or from any
trustee therefor, and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 5.01, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section 12.03 at
least three Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (and premium, if any) or interest on any Note),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purpose for which such money was received and shall not be affected by
any notice to the contrary which may be received by it during or after such
three Business Day period.
53
Subject to the provisions of Section 5.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing itself to be a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Twelve, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article Twelve, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 12.04 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 other agent (whether or
not in trust) for any payment of the principal of (and premium, if any) or
interest on any Notes shall, except as provided in Section 12.03, be subject to
the provisions of Section 12.01.
SECTION 12.05 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS
Subject to the payment in full of all Senior Indebtedness, the
holders of the Notes shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to such Senior Indebtedness until the principal of (and premium, if
any) and interest on the Notes shall be paid in full. For purposes of such
subrogation, none of the payments or distributions to the holders of the Senior
Indebtedness to which the holders of the Notes or the Trustee would be entitled
except for the provisions of this Article Twelve, or of payments over pursuant
to the provisions of this Article Twelve to the holders of Senior Indebtedness
by holders of the Notes or the Trustee shall, as among the Company, its
creditors other than holders of Senior Indebtedness and the holders of the
Notes, be deemed to be a payment or distribution by the Company to or on account
of the Senior Indebtedness; it being understood that the provisions of this
Article Twelve are and are intended solely for the purpose of defining the
relative rights of the holders of the Notes, on the one hand, and the holders of
the Senior Indebtedness on the other hand.
SECTION 12.06 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF COMPANY
OR HOLDERS OF SENIOR INDEBTEDNESS
No right of any present or future holders of any Senior Indebtedness
to enforce subordination as herein provided shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or 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 which any such holder may have or
be otherwise charged with.
54
SECTION 12.07 AUTHORIZATION OF TRUSTEE TO EFFECTUATE SUBORDINATION OF NOTES
Each holder of a Note, by his acceptance thereof, authorizes and
expressly directs the Trustee on his behalf to take such actions as may be
necessary or appropriate to effectuate the subordination provided in this
Article Twelve and appoints the Trustee his attorney-in-fact for any and all
such purposes.
If, in the event of any proceeding or other action relating to the
Company referred to in the first sentence of Section 12.01, 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 Notes prior to fifteen days before the
expiration of the time to file such claim or claims, then the holder or holders
of Senior Indebtedness shall have the right to file and are hereby authorized to
file appropriate claim for and on behalf of the holders of the Notes; provided,
that no such filing by any holders of Senior Indebtedness shall preclude the
Trustee from filing such a proof of claim on behalf of the holders of Notes.
SECTION 12.08 RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS
The Trustee in its individual capacity shall be entitled to all of
the rights set forth in this Article Twelve in respect of any Senior
Indebtedness 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. Nothing in this Article shall subordinate to Senior Indebtedness the
claims of, or any payments to, the Trustee under Section 5.06.
SECTION 12.09 ARTICLE TWELVE NOT TO PREVENT EVENTS OF DEFAULT
The failure to make a payment pursuant to the Notes by reason of any
provision in this Article shall not be construed as preventing the occurrence of
a default or an Event of Default.
SECTION 12.10 ARTICLE APPLICABLE TO PAYING AGENTS
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article Twelve shall in such case (unless the content
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 12.08 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 12.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT
Upon any payment or distribution of assets of the Company referred
to in this Article Twelve, the Trustee, subject to the provisions of Section
5.01, and the holders of the Notes shall be entitled to rely upon any order or
decree entered by any court of competent
55
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the holders
of Notes for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Twelve.
SECTION 12.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to holders of Notes or to
the Company or to any other Person, cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article
Twelve or otherwise.
SECTION 12.13 PAYMENT PERMITTED IF NO DEFAULT
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in any of the Notes shall prevent the Company, at any time except
during the case of any insolvency, receivership, conservatorship,
reorganization, readjustment or debt, marshalling of assets and liabilities or
similar proceedings or any liquidation or winding-up of or relating to the
Company referred to in Section 12.01, from making payments at any time of
principal of (and premium, if any) or interest on the Notes or as provided in
the third paragraph of Section 12.01.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01 PROVISIONS BINDING ON COMPANY'S SUCCESSORS
All the covenants, stipulations, promises and agreements contained
in this Indenture by the Company shall bind its successors and assigns whether
so expressed or not.
SECTION 13.02 OFFICIAL ACTS BY SUCCESSOR
Any act or proceeding by any provisions of this Indenture authorized
or required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any Person that shall at the time be the
lawful sole successor of the Company.
SECTION 13.03 ADDRESSES FOR NOTICES; ETC.
Any notice or demand that by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the holders of
Notes on the Company may
56
be given or served by being deposited postage prepaid by registered or certified
mail in a post office letter box addressed (until another address is filed by
the Company with the Trustee) to Synovus Financial Corp., Attention: Treasurer,
▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. Any notice, direction, request or
demand by any Noteholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing to The
Bank of New York Trust Company, N.A., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Division.
SECTION 13.04 GOVERNING LAW
THIS INDENTURE AND EACH NOTE 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 THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT
OF LAW PRINCIPLES.
SECTION 13.05 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT
Upon any application or request 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.
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 3.04, which certificates shall comply with the requirements of Section
3.04) shall include: (i) a statement that the person making such certificate or
opinion has read such covenant or condition; (ii) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinion contained in such certificate or opinion are based; (iii) 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 (iv) a
statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.
The provisions of this Section 13.05 are in furtherance of and
subject to Sections 314(c)(1), 314(c)(2) and 314(e) of the Trust Indenture Act.
SECTION 13.06 LEGAL HOLIDAYS
In any case where the Stated Maturity of principal of, premium, if
any, or interest on the Notes will not be a Business Day, payment of such
principal, premium, if any, or interest need not be made on such date but may be
made on the next following Business Day with the same force and effect as if
made on the Stated Maturity and, if such principal, premium, if any,
57
or interest is duly paid on such next following Business Day, no interest shall
accrue for the period from and after such Stated Maturity to such next following
Business Day.
SECTION 13.07 TRUST INDENTURE ACT TO CONTROL
This Indenture is subject to, and will be governed by, the
provisions of the Trust Indenture Act that are required to be a part of and
govern indentures qualified under the Trust Indenture Act (regardless of whether
or not this Indenture has been qualified thereunder). If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another
provision hereof which is required to be included, or is deemed to be required
to be included, in this Indenture by any provision of the Trust Indenture Act,
such required provision shall control.
SECTION 13.08 NO SECURITY INTEREST CREATED
Nothing in this Indenture or in the Notes, expressed or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect, in any jurisdiction where property of the Company or its Subsidiaries is
located.
SECTION 13.09 BENEFITS OF INDENTURE
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties to this Indenture, any Paying Agent,
any Note Registrar and their successors under this Indenture and the holders of
Notes any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 13.10 PAYMENTS TO BE MADE IN U.S. DOLLARS
Notwithstanding anything in this Indenture to the contrary, any
payments on or relating to any Note shall be made only in U.S. dollars.
SECTION 13.11 AUTHENTICATING AGENT
There may be an Authenticating Agent appointed by the Trustee to act
as its agent on its behalf and subject to its direction in connection with the
authentication and delivery of the Notes. The Notes authenticated by such
Authenticating Agent shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee. Wherever reference is made in the Indenture to the authentication and
delivery of Notes by the Trustee or to the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by such Authenticating
Agent. Such Authenticating Agent shall at all times be a Person organized and
doing business under the laws of the United States or of any State, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $25,000,000, subject to supervision or examination by
Federal or State authority.
58
Any Person into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which any Authenticating Agent shall
be party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such Authenticating Agent. 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 any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and to the
Company.
Upon receiving a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 13.11, the Trustee promptly may
appoint a successor Authenticating Agent, which shall be acceptable to the
Company, and shall give written notice of such appointment to the Company, and
the Company shall give notice of such appointment to all holders of Notes. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein. The Authenticating Agent shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee.
SECTION 13.12 TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents and the titles and headings of the articles
and sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions of this Indenture.
SECTION 13.13 EXECUTION 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.
59
IN WITNESS WHEREOF, SYNOVUS FINANCIAL CORP. has caused this
Indenture to be signed and acknowledged by its Senior Vice President, and its
corporate seal to be affixed hereunto, and the same to be attested by its
Secretary or an Assistant Secretary, and THE BANK OF NEW YORK TRUST COMPANY,
N.A. has caused this Indenture to be signed and acknowledged by its authorized
officer or agent, and has caused its corporate seal to be affixed hereunto and
the same to be attested by its authorized officer , as of the day and year first
written above.
SYNOVUS FINANCIAL CORP.
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
[SEAL]
Attest:
/s/ Garilou Page
-----------------------------------------
THE BANK OF NEW YORK TRUST COMPANY,
N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
[SEAL]
Attest:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Assistant Treasurer
60
STATE OF )
) ss.:
COUNTY OF )
On the __ day of June, 2005, before me personally came ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, to me known, who, being by me duly sworn did depose and say that she
resides at ▇▇▇▇▇▇ County, GA; that she is the Senior Vice President of Synovus
Financial Corp., one of the corporations described in and which executed the
above instrument; that she knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by the authority of the Board of Directors of said corporation; and that
she signed her name thereto by like authority.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF FLORIDA )
) ss.:
COUNTY OF ▇▇▇▇▇ )
On the __ day of June, 2005, before me personally came ▇▇▇▇▇ ▇▇▇▇▇▇,
to me known, who, being by me duly sworn did depose and say that he resides at
▇▇▇▇▇ Cty, FL; that he is a Vice President of THE BANK OF NEW YORK TRUST
COMPANY, N.A., one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by the
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Notary Public
[NOTARIAL SEAL]
61
APPENDIX A
[FORM OF GLOBAL NOTE]
THIS NOTE IS NOT A DEPOSIT OR OTHER OBLIGATION OF A DEPOSITORY INSTITUTION AND
IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
[INCLUDE IF NOTE IS A GLOBAL NOTE DEPOSITED WITH DTC] - THIS NOTE IS A GLOBAL
NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER. THIS GLOBAL
NOTE MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A NOTE REGISTERED IN THE
NAME OF ANY PERSON OTHER THAN THE DEPOSITORY TRUST COMPANY, A NEW YORK LIMITED
PURPOSE TRUST COMPANY ("DTC"), OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES SET FORTH IN SECTION 2.07 OF THE INDENTURE, AND MAY NOT BE
TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.07 OF THE INDENTURE. BENEFICIAL INTERESTS IN THIS GLOBAL NOTE
MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH SECTION 2.07 OF THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY
NOTE ISSUED IN EXCHANGE FOR THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO.
("CEDE") OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON
THE REVERSE HEREOF.
[INCLUDE IF NOTE IS A REGULATION S TEMPORARY GLOBAL NOTE, A RULE 144A GLOBAL
NOTE OR A NOTE ISSUED IN EXCHANGE THEREFOR] - THIS NOTE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY OTHER
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
A-1
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) AND IS AWARE THAT THE SALE IS BEING MADE IN RELIANCE ON RULE
144A UNDER THE SECURITIES ACT OR (B) IT IS A NON-U.S. PERSON (AS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT), AND IT IS PURCHASING THE NOTE IN AN
OFFSHORE TRANSACTION PURSUANT TO REGULATION S; (2) AGREES THAT IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (a) (i) TO THE ISSUER OR ANY
SUBSIDIARY THEREOF, (ii) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(iii) OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (iv) PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (v) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND (b) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER JURISDICTION; AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND, IN EACH CASE, IN ACCORDANCE
WITH APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER JURISDICTION.
BY ITS ACQUISITION HEREOF, THE HOLDER OF THIS NOTE REPRESENTS THAT IT IS NOT,
AND IS NOT ACQUIRING THE NOTES WITH THE ASSETS OF, OR FOR OR ON BEHALF OF, AND
WILL NOT SELL OR OTHERWISE TRANSFER THE NOTES TO, ANY EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITIES ACT OF 1974, AS AMENDED
("ERISA"), ANY OTHER PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY ENTITY WHOSE UNDERLYING
ASSETS INCLUDE ASSETS OF ANY SUCH PLAN PURSUANT TO 29 C.F.R. SECTION 2510.3-101
OR OTHERWISE, OR ANY GOVERNMENTAL OR CHURCH PLAN SUBJECT TO ANY FEDERAL, STATE
OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE ("SIMILAR LAW") EXCEPT TO THE EXTENT THAT THE
ACQUISITION AND HOLDING OF THE NOTES:
(A) (I) ARE MADE SOLELY WITH THE ASSETS OF A BANK COLLECTIVE INVESTMENT
FUND AND (II) SATISFY THE REQUIREMENTS AND CONDITIONS OF PROHIBITED
TRANSACTION CLASS EXEMPTION 91-38 ISSUED BY THE DEPARTMENT OF LABOR;
A-2
(B) (I) ARE MADE SOLELY WITH THE ASSETS OF AN INSURANCE COMPANY POOLED
SEPARATE ACCOUNT AND (II) SATISFY THE REQUIREMENTS AND CONDITIONS OF
PROHIBITED TRANSACTION CLASS EXEMPTION 90-1 ISSUED BY THE DEPARTMENT
OF LABOR;
(C) (I) ARE MADE SOLELY WITH ASSETS MANAGED BY A QUALIFIED PROFESSIONAL
ASSET MANAGER AND (II) SATISFY THE REQUIREMENTS AND CONDITIONS OF
PROHIBITED TRANSACTION CLASS EXEMPTION 84-14 ISSUED BY THE DEPARTMENT
OF LABOR;
(D) (I)ARE MADE SOLELY WITH ASSETS OF AN INSURANCE COMPANY GENERAL ACCOUNT
AND (II) SATISFY THE REQUIREMENTS AND CONDITIONS OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ISSUED BY THE DEPARTMENT OF LABOR;
(E) (I) ARE MADE SOLELY WITH ASSETS MANAGED BY AN IN-HOUSE ASSET MANAGER
AND (II) SATISFY THE REQUIREMENTS AND CONDITIONS OF PROHIBITED
TRANSACTION CLASS EXEMPTION 96-23 ISSUED BY THE DEPARTMENT OF LABOR;
OR
(F) WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR
THE CODE OR, IN THE CASE OF A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT
TO SIMILAR LAW, WILL NOT RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR
LAW.
[INCLUDE IF NOTE IS A REGULATION S TEMPORARY GLOBAL NOTE] - THIS GLOBAL NOTE IS
A REGULATION S GLOBAL NOTE FOR PURPOSES OF REGULATION S UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS
REGULATION S GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR
DELIVERED, EXCEPT AS PERMITTED ABOVE.
NO BENEFICIAL OWNERS OF THIS REGULATION S GLOBAL NOTE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL HEREOF OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE INDENTURE.
A-3
Global Note
Synovus Financial Corp.
5.125% Subordinated Notes Due 2017
No.: ___ $______________
No.: ___
Cusip No.: 87161C AF 2 (Rule 144A Global Note)
Cusip No.: U80803 AB 2 (Regulation S Global Note)
Synovus Financial Corp., a corporation duly organized and existing
under the laws of Georgia (the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the principal sum of [Four
Hundred Fifty Million Dollars ($450,000,000)]/[No Dollars ($0.00)] (or such
[lesser]/[greater] amount as shall be the outstanding principal amount of this
Note listed on Schedule A hereto) on June 15, 2017 (the "Maturity Date"), and to
pay interest thereon from and including June 20, 2005, or from and including the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on June 15 and December 15 in each year, commencing
December 15, 2005, at the rate of 5.125% per annum, until the principal hereof
is paid or made available for payment. The interest (including Additional
Interest, if any) so payable, and punctually paid or duly provided for, on any
Interest Payment Date will be paid, as provided in the Indenture, to the Person
in whose name this Global Note (or one or more Predecessor Notes) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the June 1 or December 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date; provided, that interest
payable at maturity (including any Additional Interest payable at maturity)
shall be payable to the person to whom principal is payable. Any such interest
not so punctually paid or duly provided for forthwith will cease to be payable
to the holder on such Regular Record Date and either may be paid to the Person
in whose name this Global Note (or one or more Predecessor Notes) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
holders of Notes of this series not less than ten days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange or automated quotation system
on which the Notes may be listed or traded, and upon such notice as may be
required by such exchange or automated quotation system, all as more fully
provided in the Indenture.
Interest on the Global Note will accrue from and including June 20,
2005 or from and including the last day in respect of which interest has been
paid, as the case may be, to, but excluding, the Interest Payment Date, or the
Maturity Date, as the case may be. Interest will be computed on the basis of a
360-day year consisting of twelve 30-day months.
A-4
If any Interest Payment Date or the Maturity Date, as the case may
be, falls on a day that is not a Business Day, the related payment of interest
or principal will be made on the next day that is a Business Day (with the same
force and effect as if made on the date such payment was due) and no interest
will accrue on the amount payable for the period from and after such Interest
Payment Date or Maturity Date, as the case may be.
Payment of the principal of, premium, if any, and interest on this
Global Note will be made at the office or agency of the Company maintained for
that purpose in New York, New York or in such other office or agency as may be
established by the Company pursuant to the Indenture, in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts. Notwithstanding any provision of the
Indenture or this Global Note to the contrary, at the option of the Company,
payment of interest on this Global Note may be made by check pursuant to the
terms of this Global Note mailed to the address of the Person entitled thereto
as such address shall appear in the Note Register, except that (i) a holder of
$20,000,000 or more in aggregate principal amount of Notes will be entitled to
receive such payments by wire transfer within the United States of immediately
available funds if appropriate wire transfer instructions shall have been
received in writing by the Paying Agent not later than ten days prior to the
applicable Interest Payment Date and (ii) payments in respect of the Global Note
shall be made by wire transfer of immediately available funds to the accounts
specified by the holders of the Global Notes.
Reference is hereby made to the further provisions of this Global
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Global
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
A-5
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
SYNOVUS FINANCIAL CORP.
By: ________________________________
[SEAL]
Attest:
______________________________________
A-6
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes issued under the within-mentioned Indenture.
THE BANK OF NEW YORK TRUST COMPANY,
N.A., as Trustee and
Authenticating Agent
By: ________________________________
Authorized Signatory
A-7
[REVERSE SIDE OF NOTE]
5.125% Subordinated Notes Due 2017
This Global Note is one of a duly authorized issue of an unlimited
amount of securities of the Company (the "Notes"), issued under an Indenture,
dated as of June 20, 2005 (the "Indenture", which term shall have the meaning
assigned to in it in such instrument), between the Company and The Bank of New
York Trust Company, N.A., as Trustee (the "Trustee", which term includes any
successor trustee under the Indenture), to which the Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Global
Note is one of the series designated on the face hereof, in the initial
aggregate principal amount of $450,000,000. The Company may from time to time,
without notice to or the consent of holders of the Notes, create and issue
further Notes ranking pari passu with the Notes in all respects (or in all
respects except for the payment of interest accruing prior to the issue date of
such further Notes or except for the first payment of interest following the
issue date of such further Notes) and so that such further Notes may be
consolidated and form a single series with the Notes and have the same terms as
the Notes.
[The holder of this Global Note is entitled to the benefits of the
Registration Rights Agreement, dated as of June 20, 2005, among the Company and
the Initial Purchasers named therein (the "Registration Rights Agreement"). If
(i) the Exchange Offer Registration Statement or any Shelf Registration
Statement required by the Registration Rights Agreement (as such terms are
defined in the Registration Rights Agreement), as the case may be, is not filed
with the Securities and Exchange Commission on or prior to the date which is, in
the case of the Exchange Offer Registration Statement, 90 days following the
Closing Date (as defined below) or, in the case of the Shelf Registration
Statement, 60 days after so requested, (ii) the Exchange Offer Registration
Statement or any Shelf Registration Statement required by the Registration
Rights Agreement, as the case may be, is not declared effective within, in the
case of the Exchange Registration Statement, 180 days after the Closing Date or,
in the case of the Shelf Registration Statement required by the Registration
Rights Agreement, 120 days after so requested, (iii) in the event that the
Exchange Offer Registration Statement is declared effective, the Registered
Exchange Offer (as such term is defined in the Registration Rights Agreement) is
not consummated on or prior to 210 days after the date of the Registration
Rights Agreement or (iv) the applicable Registration Statement (as such term is
defined in the Registration Rights Agreement) is filed and declared effective
but shall thereafter cease to be effective or useable (at any time that the
Company is obligated to maintain the effectiveness or usability thereof) (each
such event referred to in clauses (i) through (iv), a "Registration Default"),
the Company shall be obligated to pay additional interest ("Additional
Interest") to each Holder of the Notes, during the period of one or more such
Registration Defaults, at a rate of 0.25% per annum for the first 60 days from
and including the date immediately following the date such Registration Default
occurs, increased by an additional 0.25% per annum thereafter, on the applicable
principal amount of Notes held by such holder until all Registration Defaults
have been cured. Such obligation to pay Additional Interest shall survive until
(i) the applicable Registration Statement
A-8
is filed, (ii) the Exchange Offer Registration Statement is declared effective
or the Registered Exchange Offer is consummated with respect to all properly
tendered Notes, (iii) the Shelf Registration Statement is declared effective or
(iv) the applicable Registration Statement again becomes effective (or is
superseded by another effective Registration Statement), as the case may be. At
any time that all Registration Defaults have been cured, the accrual of
Additional Interest will cease. "Closing Date" means June 20, 2005.
The Company shall notify the Trustee and the Paying Agent under the
Indenture immediately upon the happening of each and every Registration Default.
The Company shall notify the Trustee and Paying Agent in writing at least five
days prior to each Interest Payment Date whether Additional Interest is payable
with respect to the Notes and, to the extent such Additional Interest is
payable, shall certify in such notice the date such Additional Interest
commenced to accrue, the applicable per annum interest rate and the aggregate
amount of such Additional Interest payable on such Interest Payment Date. The
Company shall pay the Additional Interest due on the Notes by depositing with
the Paying Agent (which may not be the Company for these purposes), in trust,
for the benefit of the holders thereof, on the next applicable Interest Payment
Date specified by the Indenture and the Notes, sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each applicable Interest Payment Date specified by the Indenture and the Notes
to the record holder entitled to receive the interest payment to be made on such
date. Each obligation to pay Additional Interest shall be deemed to accrue from
and including the date immediately following the date of the applicable
Registration Default.]*
The indebtedness evidenced by the Note is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full in cash of all Senior Indebtedness, and this Global
Note is issued subject to such provisions. Each holder of this Global Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Indenture and (c) appoints the Trustee its attorney-in-fact for such purpose.
If a Bankruptcy Event of Default with respect to the Notes shall
occur and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Notes to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
holders of a majority in principal amount of the Notes at the time outstanding.
The Indenture also contains provisions permitting the holders of specified
percentages in principal amount of the Notes at the time outstanding, on behalf
of the holders of all Notes, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by
---------------
* Insert for Notes issued subject to a Registration Rights Agreement.
A-9
the holder of this Global Note shall be conclusive and binding upon such holder
and upon all future holders of this Global Note and of any Note issued upon the
registration of transfer hereof or in exchange therefor in lieu hereof, whether
or not notation of such consent or waiver is made upon this Global Note.
No reference herein to the Indenture and no provision of this Global
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Global Note at the times, place and rate, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, Notes will be issued only in fully registered form and will
be represented by one or more Notes registered in the name of a nominee of The
Depository Trust Company. Beneficial interests in the Notes will be shown on,
and transfers thereof will be effected only through, the records maintained by
The Depository Trust Company's participants. Except for the limited
circumstances described in the Indenture, owners of beneficial interests in the
Notes will not be entitled to receive Notes in definitive form and will not be
considered the holders thereof.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Each holder of a Note covenants and agrees by its acceptance thereof
to comply and be bound by the foregoing provisions.
Prior to the due registration of transfer of this Global Note, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Global Note is registered as the owner hereof for all
purposes, whether or not this Global Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
This Global Note is not secured by any collateral, including the
assets of the Company or any of its Subsidiaries.
No recourse for the payment of the principal of, premium, if any, or
interest on this Note, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor Person, either
directly or through the
A-10
Company or any successor Person, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise,
all such liability being, by the issue hereof, expressly waived and released.
All terms used in this Global Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS GLOBAL NOTE SHALL EACH 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 THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAW PRINCIPLES.
A-11
[INCLUDE IF NOTE IS A GLOBAL NOTE DEPOSITED WITH DTC:]
SCHEDULE A
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Principal Amount of Signature of
Amount of decrease Amount of increase in this Global Note authorized signatory
in Principal Amount Principal Amount of following such of Trustee or Note
Date of Exchange of this Global Note this Global Note decrease or increase Custodian
A-12
APPENDIX B
[FORM OF DEFINITIVE NOTE]
THIS NOTE IS NOT A DEPOSIT OR OTHER OBLIGATION OF A DEPOSITORY INSTITUTION AND
IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
[INCLUDE IF NOTE IS A NOTE ISSUED IN EXCHANGE FOR A RULE 144A GLOBAL NOTE] -
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR ANY OTHER SECURITIES LAWS AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) AND IS
AWARE THAT THE SALE IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES
ACT OR (B) IT IS A NON-U.S. PERSON (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT), AND IT IS PURCHASING THE NOTE IN AN OFFSHORE TRANSACTION
PURSUANT TO REGULATION S; (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (a) (i) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (ii)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (iii) OUTSIDE THE UNITED
STATES IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (iv) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (v) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT AND (b) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER JURISDICTION; AND (3) AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND, IN EACH CASE, IN ACCORDANCE WITH
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND ANY OTHER
JURISDICTION.
BY ITS ACQUISITION HEREOF, THE HOLDER OF THIS NOTE REPRESENTS THAT IT IS NOT,
AND IS NOT ACQUIRING THE NOTES WITH THE ASSETS OF, OR FOR OR ON BEHALF OF, AND
WILL NOT SELL OR OTHERWISE TRANSFER THE NOTES TO, ANY EMPLOYEE BENEFIT PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITIES ACT OF 1974, AS AMENDED
("ERISA"), ANY OTHER PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ANY ENTITY WHOSE UNDERLYING
ASSETS INCLUDE ASSETS OF ANY SUCH PLAN PURSUANT TO 29 C.F.R. SECTION 2510.3-101
B-1
OR OTHERWISE, OR ANY GOVERNMENTAL OR CHURCH PLAN SUBJECT TO ANY FEDERAL, STATE
OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE ("SIMILAR LAW") EXCEPT TO THE EXTENT THAT THE
ACQUISITION AND HOLDING OF THE NOTES:
(A) (I) ARE MADE SOLELY WITH THE ASSETS OF A BANK COLLECTIVE INVESTMENT
FUND AND (II) SATISFY THE REQUIREMENTS AND CONDITIONS OF PROHIBITED
TRANSACTION CLASS EXEMPTION 91-38 ISSUED BY THE DEPARTMENT OF LABOR;
(B) (I) ARE MADE SOLELY WITH THE ASSETS OF AN INSURANCE COMPANY POOLED
SEPARATE ACCOUNT AND (II) SATISFY THE REQUIREMENTS AND CONDITIONS OF
PROHIBITED TRANSACTION CLASS EXEMPTION 90-1 ISSUED BY THE DEPARTMENT
OF LABOR;
(C) (I) ARE MADE SOLELY WITH ASSETS MANAGED BY A QUALIFIED PROFESSIONAL
ASSET MANAGER AND (II) SATISFY THE REQUIREMENTS AND CONDITIONS OF
PROHIBITED TRANSACTION CLASS EXEMPTION 84-14 ISSUED BY THE DEPARTMENT
OF LABOR;
(D) (I) ARE MADE SOLELY WITH ASSETS OF AN INSURANCE COMPANY GENERAL
ACCOUNT AND (II) SATISFY THE REQUIREMENTS AND CONDITIONS OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ISSUED BY THE DEPARTMENT OF LABOR;
(E) (I) ARE MADE SOLELY WITH ASSETS MANAGED BY AN IN-HOUSE ASSET MANAGER
AND (II) SATISFY THE REQUIREMENTS AND CONDITIONS OF PROHIBITED
TRANSACTION CLASS EXEMPTION 96-23 ISSUED BY THE DEPARTMENT OF LABOR;
OR
(F) WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR
THE CODE OR, IN THE CASE OF A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT
TO SIMILAR LAW, WILL NOT RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR
LAW.
B-2
Definitive Note
Synovus Financial Corp.
5.125% Subordinated Notes Due 2017
No.: ___ $______________*
No.: ___
Cusip No.: 87161C AF 2 (Notes issued in exchange for Rule 144A Global Note)
Cusip No.: U80803 AB 2 (Notes issued in exchange for Regulation S Global Note)
Synovus Financial Corp., a corporation duly organized and existing
under the laws of Georgia (the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to______________, or registered assigns, the principal sum of
__________________________ ($___________) (or such lesser amount as shall be the
outstanding principal amount of this Note listed on Schedule A hereto) on June
15, 2017 (the "Maturity Date"), and to pay interest thereon from and including
June 20, 2005, or from and including the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on June 15 and
December 15 in each year, commencing December 15, 2005, at the rate of 5.125%
per annum, until the principal hereof is paid or made available for payment. The
interest (including Additional Interest, if any) so payable, and punctually paid
or duly provided for, on any Interest Payment Date will be paid, as provided in
the Indenture, to the Person in whose name this Definitive Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest, which shall be the June 1 or December 1 (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date;
provided, that interest payable at maturity (including any Additional Interest
payable at maturity) shall be payable to the person to whom principal is
payable. Any such interest not so punctually paid or duly provided for forthwith
will cease to be payable to the holder on such Regular Record Date and either
may be paid to the Person in whose name this Definitive Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to holders of Notes of this series not less than
ten days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
or automated quotation system on which the Notes may be listed or traded, and
upon such notice as may be required by such exchange or automated quotation
system, all as more fully provided in the Indenture.
Interest on the Definitive Note will accrue from and including June
20, 2005 or from and including the last day in respect of which interest has
been paid, as the case may be, to, but excluding, the Interest Payment Date, or
the Maturity Date, as the case may be. Interest will be computed on the basis of
a 360-day year consisting of twelve 30-day months.
----------------
* Denominations of U.S.$1,000 and any larger amount that is an integral multiple
of U.S.$1,000.
B-3
If any Interest Payment Date or the Maturity Date, as the case may
be, falls on a day that is not a Business Day, the related payment of interest
or principal will be made on the next day that is a Business Day (with the same
force and effect as if made on the date such payment was due) and no interest
will accrue on the amount payable for the period from and after such Interest
Payment Date or Maturity Date, as the case may be.
Payment of the principal of, premium, if any, and interest on this
Definitive Note will be made at the office or agency of the Company maintained
for that purpose in New York, New York or in such other office or agency as may
be established by the Company pursuant to the Indenture, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. Notwithstanding any provision of
the Indenture or this Definitive Note to the contrary, at the option of the
Company, payment of interest on this Definitive Note may be made by check
pursuant to the terms of this Definitive Note mailed to the address of the
Person entitled thereto as such address shall appear in the Note Register,
except that a holder of $20,000,000 or more in aggregate principal amount of
Notes will be entitled to receive such payments by wire transfer within the
United States of immediately available funds if appropriate wire transfer
instructions shall have been received in writing by the Paying Agent not later
than ten days prior to the applicable Interest Payment Date.
Reference is hereby made to the further provisions of this
Definitive Note set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Definitive Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
B-4
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
SYNOVUS FINANCIAL CORP.
By: ______________________________
[SEAL]
Attest:
______________________________________
B-5
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes issued under the within-mentioned Indenture.
THE BANK OF NEW YORK TRUST
COMPANY, N.A., as Trustee and
Authenticating Agent
By: ______________________________
Authorized Signatory
B-6
[REVERSE SIDE OF NOTE]
5.125% Subordinated Notes Due 2017
This Definitive Note is one of a duly authorized issue of an
unlimited amount of securities of the Company (the "Notes"), issued under an
Indenture, dated as of June 20, 2005 (the "Indenture", which term shall have the
meaning assigned to in it in such instrument), between the Company and The Bank
of New York Trust Company, N.A., as Trustee (the "Trustee", which term includes
any successor trustee under the Indenture), to which the Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Definitive
Note is one of the series designated on the face hereof, in the initial
aggregate principal amount of $450,000,000. The Company may from time to time,
without notice to or the consent of holders of the Notes, create and issue
further Notes ranking pari passu with the Notes in all respects (or in all
respects except for the payment of interest accruing prior to the issue date of
such further Notes or except for the first payment of interest following the
issue date of such further Notes) and so that such further Notes may be
consolidated and form a single series with the Notes and have the same terms as
the Notes.
[The holder of this Definitive Note is entitled to the benefits of
the Registration Rights Agreement, dated as of June 20, 2005, among the Company
and the Initial Purchasers named therein (the "Registration Rights Agreement").
If (i) the Exchange Offer Registration Statement or any Shelf Registration
Statement required by the Registration Rights Agreement (as such terms are
defined in the Registration Rights Agreement), as the case may be, is not filed
with the Securities and Exchange Commission on or prior to the date which is, in
the case of the Exchange Offer Registration Statement, 90 days following the
Closing Date (as defined below) or, in the case of the Shelf Registration
Statement, 60 days after so requested, (ii) the Exchange Offer Registration
Statement or any Shelf Registration Statement required by the Registration
Rights Agreement, as the case may be, is not declared effective within, in the
case of the Exchange Registration Statement, 180 days after the Closing Date or,
in the case of the Shelf Registration Statement required by the Registration
Rights Agreement, 120 days after so requested, (iii) in the event that the
Exchange Offer Registration Statement is declared effective, the Registered
Exchange Offer (as such term is defined in the Registration Rights Agreement) is
not consummated on or prior to 210 days after the date of the Registration
Rights Agreement or (iv) the applicable Registration Statement (as such term is
defined in the Registration Rights Agreement) is filed and declared effective
but shall thereafter cease to be effective or useable (at any time that the
Company is obligated to maintain the effectiveness or usability thereof) (each
such event referred to in clauses (i) through (iv), a "Registration Default"),
the Company shall be obligated to pay additional interest ("Additional
Interest") to each Holder of the Notes, during the period of one or more such
Registration Defaults, at a rate of 0.25% per annum for the first 60 days from
and including the date immediately following the date such Registration Default
occurs, increased by an additional 0.25% per annum thereafter, on the applicable
principal amount of Notes held by such holder until all Registration Defaults
have been cured. Such obligation to pay Additional Interest shall survive until
(i) the applicable Registration Statement
B-7
is filed, (ii) the Exchange Offer Registration Statement is declared effective
or the Registered Exchange Offer is consummated with respect to all properly
tendered Notes, (iii) the Shelf Registration Statement is declared effective or
(iv) the applicable Registration Statement again becomes effective (or is
superseded by another effective Registration Statement), as the case may be. At
any time that all Registration Defaults have been cured, the accrual of
Additional Interest will cease. "Closing Date" means June 20, 2005.
The Company shall notify the Trustee and the Paying Agent under the
Indenture immediately upon the happening of each and every Registration Default.
The Company shall notify the Trustee and Paying Agent in writing at least five
days prior to each Interest Payment Date whether Additional Interest is payable
with respect to the Notes and, to the extent such Additional Interest is
payable, shall certify in such notice the date such Additional Interest
commenced to accrue, the applicable per annum interest rate and the aggregate
amount of such Additional Interest payable on such Interest Payment Date. The
Company shall pay the Additional Interest due on the Notes by depositing with
the Paying Agent (which may not be the Company for these purposes), in trust,
for the benefit of the holders thereof, on the next applicable Interest Payment
Date specified by the Indenture and the Notes, sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each applicable Interest Payment Date specified by the Indenture and the Notes
to the record holder entitled to receive the interest payment to be made on such
date. Each obligation to pay Additional Interest shall be deemed to accrue from
and including the date immediately following the date of the applicable
Registration Default.]*
The indebtedness evidenced by the Note is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full in cash of all Senior Indebtedness, and this
Definitive Note is issued subject to such provisions. Each holder of this
Definitive Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee its attorney-in-fact for
such purpose.
If a Bankruptcy Event of Default with respect to the Notes shall
occur and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Notes to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
holders of a majority in principal amount of the Notes at the time outstanding.
The Indenture also contains provisions permitting the holders of specified
percentages in principal amount of the Notes at the time outstanding, on behalf
of the holders of all Notes, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by
--------------
* Insert for Notes issued subject to a Registration Rights Agreement.
B-8
the holder of this Definitive Note shall be conclusive and binding upon such
holder and upon all future holders of this Definitive Note and of any Note
issued upon the registration of transfer hereof or in exchange therefor in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Definitive Note.
No reference herein to the Indenture and no provision of this
Definitive Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Definitive Note at the times, place and rate, and
in the coin or currency, herein prescribed.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Each holder of a Note covenants and agrees by its acceptance thereof
to comply and be bound by the foregoing provisions.
Prior to the due registration of transfer of this Definitive Note,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Definitive Note is registered as the owner hereof
for all purposes, whether or not this Definitive Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Definitive Note is not secured by any collateral, including the
assets of the Company or any of its Subsidiaries.
No recourse for the payment of the principal of, premium, if any, or
interest on this Note, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor Person, either
directly or through the Company or any successor Person, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the issue
hereof, expressly waived and released.
All terms used in this Definitive Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS DEFINITIVE NOTE SHALL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW
B-9
YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
B-10
[Form of Transfer of Definitive Note]
______________, being the registered holder of this Definitive Note,
hereby transfers to ______________ U.S.$ ______________ in principal amount of
this Note and irrevocably requests and authorizes ______________, in its
capacity as Note Registrar in relation to the 5.125% Subordinated Notes Due 2017
of Synovus Financial Corp. (or any successor to ______________, in its capacity
as such) to effect the relevant transfer by means of appropriate entries in the
register kept by it.
Dated:
Signed: ____________________
Note:
(i) the signature to this assignment must correspond with the name
as it appears upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever;
(ii) a representative of the registered holder should state the
capacity in which he signs, e.g., executor;
(iii) the signature of the transferor must be guaranteed in a manner
satisfactory to the Note Registrar.
In connection with any transfer of this Note occurring prior to the date which
is the earlier of (i) the date of an effective registration statement under the
Securities Act relating to the Notes or (ii) two years (or such lesser period as
may be provided in any amendment to Rule 144(k) under the Securities Act) after
the later of the original issuance of this Security or the last date on which
this Security was held by the Company or an affiliate (as contemplated by Rule
144 under the Securities Act) of the Company, the undersigned confirms that
without utilizing any general solicitation or general advertising that this
Security is being transferred in accordance with its terms:
B-11
[Check One]
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration statement under the
Securities Act; or
(3) [ ] in the United States to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) that purchases for
its own account or for the account of a qualified institutional
buyer to whom notice is given that such transfer is being made in
reliance on Rule 144A, in each case pursuant to and in compliance
with Rule 144A under the Securities Act; or
(4) [ ] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in compliance
with Rule 904 under the Securities Act; or
(5) [ ] pursuant to the exemption from registration provided by Rule
144 under the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any Person other
than the registered holder thereof, provided, however, that if box (4) or (5) is
checked, the Trustee may require, prior to registering any such transfer of the
Securities, such legal opinions, certifications and other information as the
Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
Dated:
By: ______________________________
Authorized Signatory
Signature guaranteed:
__________________________________
▇-▇▇
▇▇▇▇▇▇▇▇ ▇-▇
[FORM OF NON-U.S. BENEFICIAL OWNERSHIP CERTIFICATION
BY EUROCLEAR OR CLEARSTREAM LUXEMBOURG]
The Bank of New York Trust
Company, N.A., as Trustee,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
Re: Synovus Financial Corp.
5.125% Subordinated Notes due 2017 (the "Notes")
This is to certify with respect to $_________ principal amount of
the Notes that, except as set forth below, we have received in writing, by
tested telex or by electronic transmission, from member organizations appearing
in our records as persons being entitled to a portion of such principal amount
(our "Member Organizations") certifications with respect to such portion,
substantially to the effect set forth in the Indenture for the Notes.
We further certify:
(i) that we are not making available herewith for exchange (or, if
relevant, exercise of any rights or collection of any interest) any portion of
the Temporary Global Note excepted in such certifications; and
(ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, exercise of any rights or
collection of any interest) are no longer true and cannot be relied upon as the
date hereof.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you or the Company to produce this certification to any interested party in such
proceedings.
Dated:
Yours faithfully,
[Euroclear or Clearstream Luxembourg]
By: ________________________________
C-1
APPENDIX C-2
[FORM OF NON-U.S. BENEFICIAL OWNERSHIP CERTIFICATION
BY MEMBER ORGANIZATION]
[Euroclear or Clearstream Luxembourg, as applicable]
Re: Synovus Financial Corp.
5.125% Subordinated Notes due 2017 (the "Notes")
This is to certify that as of the date hereof, and except as set
forth below, the Notes held by you for our account are beneficially owned by (a)
non-U.S. person(s) or (b) U.S. person(s) who purchased the Notes in transactions
which did not require registration under the Securities Act of 1933, as amended
(the "Act"). As used in this paragraph the term "U.S. person" has the meaning
given to it by Regulation S under the Act.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the Notes
held by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
This certification excepts and does not relate to $[-] of such
interest in the above Notes in respect of which we are not able to certify and
as to which we understand exchange and delivery of definitive Notes (or, if
relevant, exercise of any rights or collection of any interest) cannot be made
until we do so certify.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you, the Company or the Trustee or Registrar for the Notes to produce this
certification to any interested party in such proceedings.
Date: [-]. (Not earlier than 15 days prior to the end of the 40-day
period referred to in Section 2.01(e) of the Indenture for the Notes).
By: ________________________________________
[Agent Member]
As, or as agent for, the Beneficial Owner(s) of the Notes to which this
certificate relates.
C-2
APPENDIX D
[FORM OF CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL NOTE TO REGULATION S TEMPORARY GLOBAL NOTE]
(exchanges or transfers pursuant to
Section 2.07(b)(ii) of the Indenture)
The Bank of New York Trust
Company, N.A., as Trustee,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
Re: Synovus Financial Corp.
5.125% Subordinated Notes due 2017 (the "Notes")
Reference is hereby made to the Indenture dated as of June 20, 2005 (the
"Indenture") between Synovus Financial Corp. (the "Company") and The Bank of New
York Trust Company, N.A. (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
This letter relates to U.S.$____________ principal amount of Notes which
are held as a beneficial interest in the Rule 144A Global Note (CUSIP No.
_________) with the Depository Trust Company, a New York corporation ("DTC"), in
the name of [Insert name of DTC participant] (the "Transferor"). The Transferor
has requested an exchange or transfer of such beneficial interest for an
interest in the Regulation S Temporary Global Note (CUSIP No. __________) to be
held with [Euroclear] [Clearstream Luxembourg] (ISIN Code ___________) (Common
Code _____________) through DTC.
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such exchange or transfer has been effected
in accordance with the transfer restrictions set forth in the Notes and pursuant
to and in accordance with Regulation S under the United States Securities Act of
1933, as amended (the "Securities Act") and accordingly the Transferor does
hereby certify that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) (A) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States, or
(B) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor
nor any person acting on our behalf knows that the transaction was
pre-arranged with a buyer in the United States;
D-1
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest being
transferred as described above was held with Euroclear or
Clearstream Luxembourg through DTC (ISIN Code ___________).
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers for the Notes.
[Insert Name of Transferor]
By: ______________________________
Name:
Title:
Dated: _____________________________
cc: Synovus Financial Corp.
D-2
APPENDIX E
[FORM OF CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL NOTE TO REGULATION S PERMANENT GLOBAL NOTE]
(exchanges or transfers pursuant to
Section 2.07(b)(iii) of the Indenture)
The Bank of New York Trust
Company, N.A., as Trustee,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
Re: Synovus Financial Corp.
5.125% Subordinated Notes due 2017 (the "Notes")
Reference is hereby made to the Indenture dated as of June 20, 2005 (the
"Indenture") between Synovus Financial Corp. (the "Company") and The Bank of New
York Trust Company, N.A. (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
This letter relates to U.S.$____________ principal amount of Notes which
are held as a beneficial interest in the Rule 144A Global Note (CUSIP No.
___________) with the Depository Trust Company, a New York corporation ("DTC"),
in the name of [Insert name of DTC Participant] (the "Transferor"). The
Transferor has requested an exchange or transfer of such beneficial interest for
an interest in the Regulation S Permanent Global Note (CUSIP No. ___________).
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such exchange or transfer has been effected
in accordance with the transfer restrictions set forth in the Notes and (i)
that, with respect to transfers made in reliance on Regulations S under the
Securities Act of 1933, as amended (the "Securities Act"):
(1) the offer of the Notes was not made to a person in the United
States;
(2) (A) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States, or
(B) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor
nor any person acting on our behalf knows that the transaction was
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable; and
E-1
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
or (ii) that, with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Notes are being transferred in a transaction permitted by
Rule 144 under the Securities Act and such holder delivers the certification set
forth in Appendix G and, if requested by the Company and/or Note Registrar, an
opinion of counsel and such other certification or evidence of its compliance
with Rule 144 under the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers for the Notes.
[Insert Name of Transferor]
By: ______________________________
Name:
Title:
Dated: _______________________________
cc: Synovus Financial Corp.
E-2
APPENDIX F
[FORM OF CERTIFICATE FOR EXCHANGE
OR TRANSFER FROM REGULATION S TEMPORARY GLOBAL NOTE OR
REGULATION S PERMANENT GLOBAL NOTE TO RULE 144A GLOBAL NOTE]
(exchanges or transfers pursuant to
Section 2.07(b)(iv) of the Indenture)
The Bank of New York Trust
Company, N.A., as Trustee,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
Re: Synovus Financial Corp.
5.125% Subordinated Notes due 2017 (the "Notes")
Reference is hereby made to the Indenture dated as of June 20, 2005 (the
"Indenture") between Synovus Financial Corp. (the "Company") and The Bank of New
York Trust Company, N.A. (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
This letter relates to U.S.$____________ principal amount of Notes which
are held as a beneficial interest in the [Regulation S Temporary Global Note
(CUSIP No. _____________)] [Regulation S Permanent Global Note (CUSIP No.
___________)] with [Euroclear] [Clearstream Luxembourg] (ISIN Code __________)
(Common Code __________) through the Depository Trust Company, a New York
corporation ("DTC"), in the name of [Insert name of Euroclear/Clearstream
Luxembourg agent member] (the "Transferor"). The Transferor has requested an
exchange or transfer of such beneficial interest in the Notes for an interest in
the Rule 144A Global Note (CUSIP No. _____________).
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the Securities Act to a transferee that the
Transferor reasonably believes is purchasing the Notes for its own account or an
account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in each case in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other jurisdiction.
F-1
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers for the Notes.
[Insert Name of Transferor]
By: ______________________________
Name:
Title:
Dated: ________________________________
cc: Synovus Financial Corp.
▇-▇
▇▇▇▇▇▇▇▇ ▇
[FORM OF RULE 144 CERTIFICATION]
[Date]
The Bank of New York Trust
Company, N.A., as Trustee,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
Re: Synovus Financial Corp.
5.125% Subordinated Notes due 2017 (the "Notes")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of June 20, 2005
(as amended and supplemented from time to time, the "Indenture"), between the
Company and The Bank of New York Trust Company, N.A., as Trustee. Capitalized
terms used but not defined herein shall have the meanings given them in the
Indenture.
In connection with our proposed sale of $_________ aggregate
principal amount of the Notes [in the case of a transfer of an interest in a
144A Global Note:, which represent an interest in a Rule 144A Global Note
beneficially owned by] the undersigned ("Transferor"), we confirm that such sale
has been effected pursuant to and in accordance with Rule 144 under the
Securities Act.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Insert Name of Transferor]
By: ______________________________
Name:
Title:
G-1