EXHIBIT (4)(e)
CMS Energy Corporation, Issuer
and
The Bank of New York, Trustee
INDENTURE
Dated as of _____________, 1996
______________
CROSS REFERENCE SHEET
_____________
Provisions of Trust Indenture Act of 1939 and Indenture to
be dated as of ____________, 1996 between CMS Energy Corporation and
The Bank of New York, as Trustee:
Section of the Act Section of Indenture
__________________ ____________________
310(a)(1) and (2). . . . . 6.9
310(a)(3) and (4). . . . . Inapplicable
310(b) . . . . . . . . . . 6.8 and 6.10(a),(b) and (d)
310(c) . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . 6.13(a) and (c)(1) and (2)
311(b) . . . . . . . . . . 6.13(b)
311(c) . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . 4.1 and 4.2(a)
312(b) . . . . . . . . . . 4.2(a) and (b)(i) and (ii)
312(c) . . . . . . . . . . 4.2(c)
313(a) . . . . . . . . . . 4.4(a)
313(b)(1). . . . . . . . . Inapplicable
313(b)(2). . . . . . . . . 4.4(b)
313(c) . . . . . . . . . . 4.4(c)
313(d) . . . . . . . . . . 4.4(d)
314(a) . . . . . . . . . . 4.3
314(b) . . . . . . . . . . Inapplicable
314(c)(1) and (2). . . . . 14.5
314(c)(3). . . . . . . . . Inapplicable
314(d) . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . 14.5
314(f) . . . . . . . . . . Inapplicable
315(a), (c) and (d). . . . 6.1
315(b) . . . . . . . . . . 5.11
315(e) . . . . . . . . . . 5.12
316(a)(1). . . . . . . . . 5.9
316(a)(2). . . . . . . . . Not required
316(a) (last sentence) . . 7.4
316(b) . . . . . . . . . . 5.7
316(c) . . . . . . . . . . Not required
317(a) . . . . . . . . . . 5.2
317(b) . . . . . . . . . . 3.4(a) and (b)
318(a) . . . . . . . . . . 14.7
________________
* This Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
_____________
Page
____
PARTIES. . . . . . . . . . . . . . . . . . . 1
RECITALS
Authorization of Indenture. . . . . . . 1
Compliance with Legal Requirements. . . . 1
Purpose of and Consideration for Indenture. . . . . . . . 1
ARTICLE ONE
DEFINITIONS
Section 1.1 Certain Terms Defined. . . . . 1
Affiliate . . . . . . . . . . . 2
Authenticating Agent. . . . . . 2
Authorized Newspaper. . . . . . 2
Board of Directors. . . . . . . 2
Board Resolution. . . . . . . . 2
Business Day. . . . . . . . . . 2
Commission. . . . . . . . . . . 2
Common Stock. . . . . . . . . . 2
Conversion Agent. . . . . . . . 2
Convertible Securities. . . . . 2
Corporate Trust Office. . . . . 3
Coupon. . . . . . . . . . . . . 3
Covenant Defeasance . . . . . . 3
Depository. . . . . . . . . . . 3
Event of Default. . . . . . . . 3
Government Obligations. . . . . 3
Holder, Holder of Securities,
Securityholder. . . . . . . . 3
Indenture . . . . . . . . . . . 3
Interest. . . . . . . . . . . . 4
Interest Payment Date . . . . . 4
Issuer. . . . . . . . . . . . . 4
Issuer Order. . . . . . . . . . 4
Maturity. . . . . . . . . . . . 4
Officers' Certificate . . . . . 4
Opinion of Counsel. . . . . . . 4
Original Issue Date . . . . . . 4
Original Issue discount . . . . 4
Original Issue Discount Security. . . . . . . . . 5
Outstanding . . . . . . . . . . 5
Periodic Offering . . . . . . . 6
Person. . . . . . . . . . . . . 6
Principal . . . . . . . . . . . 6
Record Date . . . . . . . . . . 6
Registered Global Security. . . 6
Registered Security . . . . . . 6
Responsible Officer . . . . . . 6
Security or Securities. . . . . 7
Security Register and Security Registrar. . . . . 7
Subsidiary. . . . . . . . . . . 7
Stated Maturity . . . . . . . . 7
Trust Indenture Act of 1939 or Trust
Indenture Act . . . . . . . . 7
Trustee . . . . . . . . . . . . 7
Unregistered Security . . . . . 7
Yield to Maturity . . . . . . . 7
Section 1.2 Other Definitions . . . . . . . 7
ARTICLE TWO
SECURITIES
Section 2.1 Forms Generally. . . . . . . . . 8
Section 2.2 Form of Trustee's Certificate
of Authentication . . . . . . . . 8
Section 2.3 Amount Unlimited; Issuable in Series. . . . . . . . 9
Section 2.4 Authentication and Delivery of
Securities. . . . . . . . . . . 12
Section 2.5 Execution of Securities. . . . 15
Section 2.6 Certificate of Authentication. . . . 16
Section 2.7 Denomination of Securities; Payments
of Interest . . . . . . . . . . . 16
Section 2.8 Registration, Transfer and Exchange . . . . . . 17
Section 2.9 Mutilated, Defaced, Destroyed, Lost
and Stolen Securities . . . . . . 20
Section 2.10 Cancellation of Securities;
Destruction Thereof. . . . . 21
Section 2.11 Temporary Securities. . . . 22
Section 2.12 Computation of Interest . . 22
ARTICLE THREE
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal and Interest. . . . . . . 22
Section 3.2 Offices for Payments, etc. . . . 23
Section 3.3 Appointment to Fill a Vacancy in
Office of Trustee. . . . . . . . 24
Section 3.4 Paying Agents. . . . . . . . . . 24
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee
Names and Addresses of
Securityholders. . . . . . . . . 25
Section 4.2 Preservation and Disclosure of
Securityholders Lists. . . . . 26
Section 4.3 Reports by the Issuer. . . . . . 27
Section 4.4 Reports by the Trustee . . . . . 28
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration
of Maturity; Waiver of Default . . . . . . . . 30
Section 5.2 Collection of Indebtedness by Trustee;
Trustee May Prove Debt . . . . . 33
Section 5.3 Application of Proceeds. . . . . 35
Section 5.4 Suits for Enforcement. . . . . . 36
Section 5.5 Restoration of Rights on Abandonment
of Proceedings . . . . . . . . . 36
Section 5.6 Limitations on Suits by
Securityholders. . . . . . . . . 36
Section 5.7 Unconditional Right of
Securityholders to Receive Principal
and Interest and to Institute
Certain Suits. . . . . . . . . . 37
Section 5.8 Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default. . . . . . . . . . . . . 37
Section 5.9 Control by Holders of Securities . . . . . . 37
Section 5.10 Waiver of Past Defaults . . . . 38
Section 5.11 Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances. . . . . . . . . . 38
Section 5.12 Right of Court to Require Filing
of Undertaking to Pay Costs. . . . . 39
Section 5.13 Waiver of Stay or Extension Laws. . . . . . 39
ARTICLE SIX
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the
Trustee; During Default; Prior to
Default. . . . . . . . . . . . . 40
Section 6.2 Certain Rights of the Trustee. . 41
Section 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof. . . . . . . 42
Section 6.4 Trustee and Agents May Hold
Securities or Coupons;
Collections, etc.. . . . . . . . 42
Section 6.5 Moneys Held by Trustee . . . . . 42
Section 6.6 Compensation and Indemnification
of Trustee and Its Prior Claim . . . . . . . 42
Section 6.7 Right of Trustee to Rely on
Officers' Certificate, etc. . . . . 43
Section 6.8 Qualification of Trustee;
Conflicting Interests. . . . . . 43
Section 6.9 Persons Eligible for Appointment
as Trustee . . . . . . . . . . . 44
Section 6.10 Resignation and Removal; Appointment
of Successor Trustee . . . . . . 44
Section 6.11 Acceptance of Appointment by
Successor Trustee. . . . . . . . 46
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business of Trustee. . . . . . 47
Section 6.13 Preferential Collection of Claims
Against the Issuer . . . . . . . 47
Section 6.14 Appointment of Authenticating Agent . . . . 47
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by
Securityholders. . . . . . . . . 48
Section 7.2 Proof of Execution of Instruments and
of Holding of Securities . . . . 48
Section 7.3 Holders to be Treated as Owners. . 49
Section 7.4 Securities Owned by Issuer Deemed Not
Outstanding. . . . . . . . . . . 50
Section 7.5 Right of Revocation of Action Taken. 50
Section 7.6 Calculation of Original Issue Discount . . . . 51
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without
Consent of Securityholders . . . 51
Section 8.2 Supplemental Indentures With Consent
of Securityholders . . . . . . . 53
Section 8.3 Effect of Supplemental Indenture . . 54
Section 8.4 Documents to Be Given to Trustee . . . . . . 54
Section 8.5 Notation on Securities in Respect of
Supplemental Indentures. . . . . 54
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Covenant of Issuer Not to Merge,
Consolidate, Sell or Convey
Property Except Under Certain
Conditions . . . . . . . . . . . 55
Section 9.2 Successor Corporation Substituted
for Issuer . . . . . . . . . . . 55
Section 9.3 Opinion of Counsel Delivered
to Trustee . . . . . . . . . . . 56
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 10.1 Satisfaction and Discharge of
Indenture. . . . . . . . . . . . 56
Section 10.2 Application by Trustee of Funds
Deposited for Payment of
Securities . . . . . . . . . . . 60
Section 10.3 Repayment of Moneys Held by Paying
Agent. . . . . . . . . . . . . . 61
Section 10.4 Return of Moneys Held by Trustee
and Paying Agent Unclaimed for
Three Years. . . . . . . . . . . 61
Section 10.5 Indemnity for Government
Obligations. . . . . . . . . . . 61
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.1 Applicability of Article. . . . 62
Section 11.2 Notice of Redemption; Partial
Redemptions. . . . . . . . . . . 62
Section 11.3 Payment of Securities Called for
Redemption . . . . . . . . . . . 63
Section 11.4 Exclusion of Certain Securities from
Eligibility for Selection for
Redemption. . . . . . . . . . . . 64
Section 11.5 Mandatory and Optional Sinking
Funds. . . . . . . . . . . . . . 64
Section 11.6 Conversion Arrangement on Call for
Redemption . . . . . . . . . . . 67
ARTICLE TWELVE
SUBORDINATION
Section 12.1 Applicability of Article; Securities
Subordinated to Senior Indebtedness. . . . . 67
Section 12.2 Issuer Not to Make payments with Respect
to Subordinated Securities in Certain
Circumstances. . . . . . . . . . 68
Section 12.3 Subordinated Securities Subordinated to
Prior Payment of All Senior Indebtedness on
Dissolution, Liquidation or
Reorganization of Issuer . . . . 69
Section 12.4 Holders of Subordinated Securities to be
Subrogated to Right of Holders of
Senior Indebtedness. . . . . . . 70
Section 12.5 Obligation of the Issuer
Unconditional. . . . . . . . . . 71
Section 12.6 Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice. . . . . . . . 72
Section 12.7 Application by Trustee of Monies or
Government Obligations Deposited
With It. . . . . . . . . . . . . 72
Section 12.8 Subordination Rights Not Impaired by Acts
or Omissions of Issuer or Holders of
Senior Indebtedness. . . . . . . 73
Section 12.9 Securityholders Authorize Trustee to
Effectuate Subordination of
Securities . . . . . . . . . . . 73
Section 12.10 Right of Trustee to Hold Senior
Indebtedness. . . . . . . . . . 73
Section 12.11 Article Twelve Not to Prevent Events of
Defaults. . . . . . . . . . . . 74
ARTICLE THIRTEEN
CONVERSION
Section 13.1 Applicability of Article. . . . 74
Section 13.2 Conversion Privilege. . . . . . 74
Section 13.3 Conversion Procedure. . . . . . 75
Section 13.4 Fractional Shares . . . . . . . 76
Section 13.5 Taxes on Conversion . . . . . . 76
Section 13.6 Issuer to Provide Stock . . . . 76
Section 13.7 Adjustment for Change in
Capital Stock. . . . . . . . . . 77
Section 13.8 Adjustment for Rights Issue . . . . 77
Section 13.9 Adjustments for Other Distributions . . . . 79
Section 13.10 Voluntary Adjustment. . . . . . . . . 79
Section 13.11 Certain Definitions . . . . . . . . . 80
Section 13.12 When Adjustment May Be Deferred . . . . . 81
Section 13.13 When Adjustment Is Not Required . . . . . 81
Section 13.14 Notice of Adjustment. . . . . . . . . 82
Section 13.15 Notice of Certain Transactions. . . . 82
Section 13.16 Consolidation, Merger or Sale of the
Issuer. . . . . . . . . . . . . 83
Section 13.17 Issuer Determination Final. . . . . . 83
Section 13.18 Trustee's Disclaimer. . . . . . . . . 83
Section 13.19 Simultaneous Adjustments. . . . . . . 83
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.1 Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability . . . . . . 84
Section 14.2 Provisions of Indenture for the Sole
Benefit of Parties and Holders of
Securities and Coupons. . . . . . 84
Section 14.3 Successors and Assigns of Issuer Bound
by Indenture. . . . . . . . . . . 84
Section 14.4 Notices and Demands on Issuer, Trustee
and Holders of Securities and
Coupons . . . . . . . . . . . . . 84
Section 14.5 Officers' Certificates and Opinions of
Counsel; Statements to be Contained
Therein . . . . . . . . . . . . . 85
Section 14.6 Payments Due on Saturdays, Sundays and
Holidays. . . . . . . . . . . . . 86
Section 14.7 Conflict of any Provision of Indenture
with Trust Indenture Act of 1939. . . . . . . 86
Section 14.8 Michigan Law to Govern. . . . . . . . 86
Section 14.9 Counterparts. . . . . . . . . . . . . 87
Section 14.10 Effect of Headings. . . . . . . . . . 87
Section 14.11 Separability Clause . . . . . . . . . 87
TESTIMONIUM. . . . . . . . . . . . . . . . . 88
SIGNATURES . . . . . . . . . . . . . . . . . 88
THIS INDENTURE dated as of ____________, 1996 between CMS Energy
Corporation, a Michigan corporation (the "Issuer"), and The Bank of New York,
as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time
of its debentures, notes, bonds or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal
amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery
of this Indenture to provide, among other things, for the authentication,
delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the
respective holders from time to time of the Securities and of the Coupons,
if any, appertaining thereto as follows:
ARTICLE ONE
DEFINITIONS
___________
Section 1.1 CERTAIN TERMS DEFINED. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939, including terms defined therein by reference
to the Securities Act of 1933, as amended (except as herein otherwise
expressly provided or unless the context otherwise requires), shall have
the meanings assigned to such terms in said Trust Indenture Act and in
said Securities Act as in force at the date of this Indenture. All
accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting
principles" means such accounting principles as are generally accepted in
the United States of America at the time of any computation. The words
"herein", "hereof" and "hereunder" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or
other subdivision. The terms defined in this Article include the plural
as well as the singular.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" shall have the meaning set forth in Section
6.14.
"Authorized Newspaper" means a newspaper published in English at
least once a day for at least five days in each calendar week and of
general circulation in The City of New York, State of New York. If it
shall be impractical in the opinion of the Trustee to make any publication
of any notice required hereby in an Authorized Newspaper, any publication
or other notice in lieu thereof which is made or given with the approval
of the Trustee shall constitute a sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of the
Issuer or any committee of such Board duly authorized to act on its
behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have
been duly adopted or consented to by the Board of Directors and to be in
full force and effect, and delivered to the Trustee.
"Business Day" means, with respect to any series of Securities, a
day on which, in any city where amounts are payable on the Securities of
such series as therein specified, banking institutions are not authorized
or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution and delivery of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act of 1939, then the body
performing such duties at such time.
"Common Stock" means the Common Stock, $.01 par value, of the
Issuer as it exists on the date of this Indenture and stock of any other
class into which such Common Stock may thereafter have been changed.
"Conversion Agent" shall mean the office or agency where the
Securities of each series that is convertible may be presented for
conversion as set forth in Section 3.2.
"Convertible Securities" means any or all options, warrants,
securities and rights, except the Securities, which are convertible into
or exercisable or exchangeable for Common Stock or which otherwise entitle
the holder thereof to subscribe for, purchase or otherwise acquire Common
Stock.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date as of which this
Indenture is dated, located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
"Coupon" means any interest coupon appertaining to a Security.
"Covenant Defeasance" shall have the meaning set forth in Section
10.1(C).
"Depository" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depository by the Issuer pursuant to
Section 2.3, which must be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and any other applicable
statute or regulation, until a successor Depository shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depository" shall mean each Person who is then a Depository hereunder;
and if at any time there is more than one such Person, "Depository" as
used with respect to the Securities of any such series shall mean each
Depository with respect to the Registered Global Securities of such
series.
"Event of Default" means any event or condition specified as such
in Section 5.1.
"Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an
agency or instrumentality of the United States and the payment of which is
unconditionally guaranteed by the United States, and shall also include a
depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of
interest on or principal of any such Government Obligation held by such
custodian for the account of a holder of a depository receipt; provided
that (except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal
of the Government Obligation evidenced by such depository receipt.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean (a) in the case of any Registered Security, the Person in whose
name such Security is registered in the Security Register kept by the
Issuer for that purpose in accordance with the terms hereof, and (b) in
the case of any Unregistered Security, the bearer of such Security, or any
Coupon appertaining thereto, as the case may be.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended
or supplemented or both, and shall include the forms and terms of
particular series of Securities established as provided hereunder.
"Interest" means, when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity or
upon default in any other payment due on such Security, interest payable
after Maturity or upon such default, as the case may be.
"Interest Payment Date" means (a) the date or dates, if any, on
which interest is to be paid on any Security as established pursuant to
Section 2.3(f) (provided, however, that the first Interest Payment Date
for any Security, the Original Issue Date of which is after a Record Date
but prior to the respective Interest Payment Date, shall be the Interest
Payment Date following the next succeeding Record Date), (b) the date of
maturity or redemption of such Security, and (c) only with respect to
defaulted interest on such Security, the date established for the payment
of such defaulted interest pursuant to Section 2.7 hereof.
"Issuer" means (except as otherwise provided in Article Six) CMS
Energy Corporation, a Michigan corporation, and, subject to Article Nine,
its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer signed in its name by the Chairman, the President or any Vice
President (whether or not designated by a number or numbers or a word or
words added before or after the title "Vice President") or by the
Treasurer of the Issuer.
"Maturity" means, when used with respect to any Security, the date
on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman,
the President or any Vice President (whether or not designated by a number
or numbers or a word or words added before or after the title "Vice
President"), and by the Chief Financial Officer, Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary, of the Issuer and
delivered to the Trustee. Except as otherwise provided herein, each such
certificate shall include the statements provided for in Section 14.5.
"Opinion of Counsel" means an opinion in writing signed by the
counsel of the Issuer as designated by the Board of Directors or by such
other legal counsel who may be an employee of or regular counsel to the
Issuer and who shall be satisfactory to the Trustee. Each such opinion
shall include the statements provided for in Section 14.5, if and to the
extent required thereby.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security
(or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount" of any debt security, including any
Original Issue Discount Security, means the difference between the
principal amount of such debt security and the initial issue price of such
debt security (as set forth, in the case of an Original Issue Discount
Security, on the face of such Security).
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.1.
"Outstanding" (except as otherwise provided in Section 6.8), when
used with reference to Securities, shall, subject to the provisions of
Section 7.4, mean, as of any particular time, all Securities theretofore
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys or Government Obligations (as
provided for in Section 10.1) in the necessary amount shall
have been theretofore deposited in trust with the Trustee or
with any paying agent (other than the Issuer) or shall have
been set aside, segregated and held in trust by the Issuer
for the Holders of such Securities (if the Issuer shall act
as its own paying agent), provided that if such Securities,
or portions thereof, are to be redeemed prior to the
Maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities which shall have been paid or in
substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of
Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee is presented that
such Security is held by a Person in whose hands such
Security is a legal, valid and binding obligation of the
Issuer).
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, (a) the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.1, and (b) Securities owned by the
Issuer or any other obligor upon the Securities of any Affiliate of the
Issuer or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned as
described in clause (b) above which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Issuer or any other obligor upon the
Securities or an Affiliate of the Issuer or of such other obligor.
"Periodic Offering" means an offering of Securities of any series
from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the
stated maturity or maturities thereof and the redemption provisions, if
any, with respect thereto are to be determined by the Issuer or its agents
upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Principal", of a debt security, including any Security, means the
amount (including, without limitation, if and to the extent applicable,
any premium and, in the case of an Original Issue Discount Security, any
accrued original issue discount, but excluding interest) that is payable
with respect to such debt security as of any date and for any purpose
(including, without limitation, in connection with any sinking fund, upon
any redemption at the option of the Issuer, upon any purchase or exchange
at the option of the Issuer or the Holder of such debt security and upon
any acceleration of the Maturity of such debt security) and shall be
deemed to include the words "and premium, if any".
"Record Date" shall have the meaning set forth in Section 2.7.
"Registered Global Security" means a Security evidencing all or a
part of a series of Securities issued to the Depository, or its nominee,
for such series in accordance with Section 2.4, and bearing the legend
prescribed in Section 2.4.
"Registered Security" means any Security registered on the Security
Register of the Issuer.
"Responsible Officer", when used with respect to the Trustee, means
the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the
executive committee, any vice chairman of the executive committee, the
president, any vice president (whether or not designated by numbers or
words added before or after the title "vice president"), the cashier, the
secretary, the treasurer, any trust officer, any assistant trust officer,
any assistant vice president, any assistant cashier, any assistant
secretary, any assistant treasurer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of
his knowledge of and familiarity with the particular subject.
"Security" or "Securities" (except as otherwise provided in
Section 6.8) shall have the meaning stated in the first recital of this
Indenture and, more particularly, any Securities that have been
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" shall have the
respective meanings set forth in Section 2.8.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Issuer or
by one or more other Subsidiaries. For the purposes of this definition,
"voting stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"Stated Maturity" means, when used with respect to any Security or
any installment of principal thereof or interest thereon, the date
specified in such Security as the fixed date on which the principal of
such Security or such installment of principal or interest is due and
payable.
"Trust Indenture Act of 1939" or "Trust Indenture Act" (except as
otherwise provided in Sections 8.1 and 8.2) means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was originally
executed.
"Trustee" means the Person identified as the "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder; and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the trustee with respect to the Securities of such
series.
"Unregistered Security" means any Security other than a Registered
Security.
"Yield to Maturity" means the yield to Maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series,
in accordance with accepted financial practice.
Section 1.2 OTHER DEFINITIONS.
TERM
DEFINED IN SECTION
Average Market Price . . . . . . . . . . . 13.11
Current market price . . . . . . . . . . . 13.11
Determination Date . . . . . . . . . . . . 13.11
Ex-Dividend Date . . . . . . . . . . . . . 13.11
Senior Indebtedness. . . . . . . . . . . . 12.1(b)
ARTICLE TWO
SECURITIES
Section 2.1 FORMS GENERALLY. The Securities of each series and
the Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board
Resolution or, to the extent established pursuant to rather than set forth
in a Board Resolution, an Officers' Certificate detailing such
establishment) or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have
imprinted or otherwise reproduced thereon such letters, numbers or other
marks of identification and such legend or legends or endorsements, not
inconsistent with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant thereto, or
with any rules of any securities exchange or to conform to general usage,
all as may be determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and
Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in
any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
Section 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
________________________,
The Bank of New York,
as Trustee
By _______________________
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed
with respect to any series of Securities, then the Trustee's certificate
of authentication to be borne by the Securities of each such series shall
be substantially as follows:
"This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
_________________________,
as Authenticating Agent
By _______________________
Authorized Signatory"
Section 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
(b) The Securities may be issued in one or more series and shall
be direct obligations of the Issuer.
(c) Each Security shall be dated and issued as of the date of its
authentication by the Trustee, which is its Original Issue Date; each
Security issued upon transfer, exchange or substitution of a Security
shall bear the Original Issue Date or Dates of such transferred, exchanged
or substituted Security.
(d) Each Security shall bear interest from the later of (1) its
Original Issue Date, or (2) the most recent Interest Payment Date to which
interest has been paid or duly provided for with respect to such Security
until the principal of such Security is paid or made available for
payment, and interest on each Security shall be payable on each Interest
Payment Date after the date of such Security.
(e) Each Security shall mature on a date specified in the Security
not less than nine months nor more than 40 years after the Original Issue
Date, and the principal amount of each outstanding Security shall be
payable on the Maturity specified therein.
(f) There shall be established in or pursuant to one or more Board
Resolutions (and, to the extent established pursuant to rather than set
forth in a Board Resolution, in an Officers' Certificate detailing such
establishment) or established in one or more indentures supplemental
hereto, prior to the initial issuance of Securities of any series:
(1) the designation of the Securities of such series, which
shall distinguish the Securities of such series from the Securities of all
other series;
(2) any limit upon the aggregate principal amount of the
Securities of such series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 2.8, 2.9, 2.11, 8.5 or
11.3);
(3) subject to Section 2.3(e), the date or dates (and whether
fixed or extendible) on which the principal of the Securities of such
series is payable;
(4) the date from which interest on the Securities of such
series shall begin to accrue, the rate or rates at which the Securities of
such series shall bear interest, if any, the Interest Payment Date or
Dates for the Securities of such series and the Record Date (in the case
of Registered Securities) for interest payable on any Interest Payment
Date and/or the method by which such rate or rates shall be determined;
(5) the place or places where the principal of and any
interest on Securities of such series shall be payable and where such
Securities may be registered or transferred (if in addition to, or other
than, as provided in Section 3.2);
(6) any provisions relating to the issuance of Securities of
such series at an original issue discount (including, without limitation,
the issue price thereof, the rate or rates at which such original issue
discount shall accrue, if any, and the dates from or to which or periods
during which such original issue discount shall accrue at such rate or
rates);
(7) the right, if any, of the Issuer to redeem or purchase
Securities of such series, in whole or in part, at its option and the
period or periods within which, the price or prices at which and any terms
and conditions upon which Securities of such series may be so redeemed;
(8) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of such series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period or periods within which
and any terms and conditions upon which Securities of such series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of such series
shall be issuable;
(10) the obligation, if any, of the Issuer to permit the
conversion of Securities of such series into Common Stock and the terms
and conditions upon which such conversion shall be effected (including,
without limitation, the initial conversion price or rate, the conversion
period and any other provision in addition to or in lieu of those set
forth in Article Thirteen of this Indenture relative to such obligation);
(11) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of such series which shall
be payable upon acceleration of the Maturity thereof pursuant to
Section 5.1 or, if applicable, which is convertible in accordance with
Article Thirteen;
(12) whether the Securities of such series will be
subordinated to the payment of Senior Indebtedness on the terms and
conditions set forth in Article Twelve and whether such subordination
shall be subject to any provisions in addition to or in lieu of those set
forth in Article Twelve;
(13) whether the Securities of such series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable
in whole or in part as Registered Global Securities) or Unregistered
Securities (with or without Coupons), or any combination of the foregoing,
any restrictions applicable to the offer, sale or delivery of Unregistered
Securities or the payment of interest thereon and, if other than as
provided in Section 2.8, the terms upon which Unregistered Securities of
such series may be exchanged for Registered Securities of such series and
vice versa;
(14) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of such series held by a person who
is not a U.S. Person in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Issuer will have the
option to redeem such Securities rather than pay such additional amounts;
(15) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, and
the form and terms of any such certificates, documents or conditions;
(16) any trustees, depositaries, authenticating or paying
agents, transfer agents, conversion agents or registrars or any other
agents with respect to the Securities of such series;
(17) any events of default or covenants with respect to the
Securities of such series other than those specified herein;
(18) the Person to whom any interest on a Security of such
series shall be payable, if other than the Person in whose name the
Security (or one or more predecessor Securities) is registered at the
close of business on the Record Date for such interest;
(19) if the Securities of such series shall be issued in whole
or in part in the form of one or more Registered Global Securities,
whether beneficial owners of interests in any such Registered Global
Security may exchange such interests for Securities of such series of like
tenor and of authorized form and denomination and the circumstances under
which any such changes may occur, if other than in the manner provided in
Section 2.8;
(20) the right of the Issuer, if any, to defer any payment of
principal of or interest on the Securities of such series, and the maximum
length of any such deferral period;
(21) whether any property will be pledged to secure the
Securities; and
(22) any other terms of such series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any, appertaining
thereto shall be substantially identical, except in the case of Registered
Securities as to denomination and except as may otherwise be provided by
or pursuant to the Board Resolution or Officers' Certificate referred to
above or as set forth in any indenture supplemental hereto referred to
above. All Securities of any one series need not be issued at the same
time and may be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to such Board Resolution,
such Officers' Certificate or in any such indenture supplemental hereto.
Section 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES. The Issuer
may from time to time deliver Securities of any series, having attached
thereto appropriate Coupons, if any, executed by the Issuer to the Trustee
for authentication, together with the applicable documents referred to
below in this Section, and the Trustee shall thereupon authenticate and
make available for delivery such Securities to or upon the order of the
Issuer (contained in the Issuer Order referred to below in this Section)
or pursuant to such procedures acceptable to the Trustee and to such
recipients as may be specified from time to time by an Issuer Order. If
so provided in the Board Resolution, Officers' Certificate or supplemental
indenture establishing the Securities of any series, the maturity date,
Original Issue Date, interest rate, Interest Payment Date or Dates and any
other terms of any or all of the Securities of such series and the
Coupons, if any, appertaining thereto may be determined by or pursuant to
such Issuer Order and procedures. If provided for in such procedures,
such Issuer Order may authorize authentication and delivery pursuant to
instructions (from the Issuer or its duly authorized agent) in writing, by
facsimile or any other method mutually agreed upon by the Issuer and
Trustee. In authenticating the Securities of a series and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive (but, in the case of
subparagraphs 2, 3 and 4 below, only at or before the time of the first
request of the Issuer to the Trustee to authenticate Securities of such
series, however, any request after the first shall be deemed to include
the representation of the Issuer that the document previously delivered
pursuant to subparagraphs 2, 3 and 4 below are still true and in effect)
and (subject to Section 6.1) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities and the Coupons, if any, are
not to be delivered to the Issuer, provided that, with respect to
Securities of a series subject to a Periodic Offering, (a) such Issuer
Order may be delivered by the Issuer to the Trustee at any time prior to
the delivery to the Trustee of the Securities of such series for
authentication and delivery, (b) the Trustee shall authenticate and
deliver the Securities of such series for original issue from time to
time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, pursuant to an Issuer Order
or pursuant to such procedures acceptable to the Trustee as may be
specified from time to time by an Issuer Order, (c) if so provided in the
Board Resolution or supplemental indenture establishing the Securities of
such series, the maturity date, Original Issue Date, interest rate, the
Interest Payment Date or Dates and any other terms of any or all of the
Securities of such series may be determined by an Issuer Order or pursuant
to such procedures and (d) if provided for in such procedures, such Issuer
Order may authorize authentication and delivery pursuant to instructions
in writing, by facsimile or any other method mutually agreed upon by the
Issuer and Trustee;
(2) any Board Resolution, Officers' Certificate and/or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities of such series and
the Coupons, if any, were established;
(3) an Officers' Certificate setting forth the form or forms
and terms of the Securities of such series and the Coupons, if any,
stating (a) that such form or forms and terms have been established
pursuant to Sections 2.1 and 2.3 and comply with this Indenture, (b) the
aggregate principal amount of all of the Securities outstanding under this
Indenture and (c) the aggregate amount of interest paid with respect to
such outstanding Securities on the most recent Interest Payment Date and
covering such other matters as the Trustee may reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel,
or a letter addressed to the Trustee permitting it to rely on an Opinion
of Counsel, substantially to the effect that:
(a) the forms of the Securities of such series and the
Coupons, if any, have been duly authorized and established in conformity
with the provisions of this Indenture;
(b) the terms of the Securities of such series have been
duly authorized and established in conformity with the provisions of this
Indenture;
(c) when the Securities of such series and the Coupons,
if any, have been executed by the Issuer and authenticated by the Trustee
in accordance with the provisions of this Indenture and delivered to and
duly paid for by the purchasers thereof, they will have been duly issued
under this Indenture and will be valid and legally binding obligations of
the Issuer, enforceable in accordance with their respective terms, subject
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general principles of equity, and will be entitled to the
benefits of this Indenture;
(d) the Indenture has been duly authorized, executed and
delivered by the Issuer and constitutes a legal, valid and binding
agreement of the Issuer, enforceable in accordance with its terms, subject
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general principles of equity;
(e) the Indenture is qualified under the Trust Indenture
Act;
(f) the issuance of the Securities will not result in any
default under this Indenture, or any other contract, indenture, loan
agreement or other instrument to which the Issuer is a party or by which
it or any of its property is bound; and
(g) no consent, approval, authorization, order,
registration or qualification of or with any governmental agency or body
having jurisdiction over the Issuer is required for the execution and
delivery of the Securities of such series by the Issuer, except such as
have been obtained (except that no opinion need be expressed as to state
securities or Blue Sky laws).
The Trustee shall have the right to decline to authenticate and
deliver any Securities of any series under this Section (other than
Securities the forms and terms of which shall have been established by
supplemental indenture) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if
the Trustee in good faith by its board of directors or board of trustees,
executive committee or a trust committee of directors, trustees or Respon-
sible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would affect the Trustee's
rights, duties or immunities under the Securities of any such series, this
Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more
Registered Global Securities, then the Issuer shall execute and the Trus-
tee shall, in accordance with this Section and the Issuer Order with
respect to such series, authenticate and make available for delivery one
or more Registered Global Securities that (i) shall be in an aggregate
amount equal to the aggregate principal amount specified in such Issuer
Order, (ii) shall be registered in the name of the Depository therefor or
its nominee, (iii) shall be delivered by the Trustee to such Depository or
pursuant to such Depository's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged
in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depository to the
nominee of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such successor
Depository."
Section 2.5 EXECUTION OF SECURITIES. The Securities shall be
signed on behalf of the Issuer by both (a) its Chairman, its President or
any Vice President (whether or not designated by a number or numbers or a
word or words added before or after the title "Vice President"), under its
corporate seal reproduced thereon, which need not be attested and (b) by
its Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary. Such signatures may be the manual
or facsimile signatures of such officers. Typographical and other minor
errors or defects in any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and
delivered by the Trustee. The Coupons, if any, applicable to the
Securities of any series shall bear the facsimile signature of the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Secretary
or any Assistant Secretary of the Issuer.
In case any officer of the Issuer who shall have so signed any of
the Securities or Coupons, if any, shall cease to be such officer before
the Security or Coupon so signed (or the Security to which the Coupon so
signed appertains) shall be authenticated and delivered by the Trustee or
disposed of by the Issuer, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the person who signed
such Security or Coupon had not ceased to be such officer of the Issuer;
and any Security or Coupon may be so signed on behalf of the Issuer by
such persons as, at the actual date of the execution of such Security or
Coupon, shall be the proper officers of the Issuer, although at the date
of the execution and delivery of this Indenture any such person was not
such an officer.
Section 2.6 CERTIFICATE OF AUTHENTICATION. Only such Securities
as shall bear thereon a certificate of authentication substantially in the
form hereinbefore recited, executed by the Trustee by the manual signature
of one of its authorized signatories, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. No Coupon shall
be entitled to the benefits of this Indenture or shall be valid and
obligatory for any purpose until the certificate of authentication on the
Security to which such Coupon appertains shall have been duly executed by
the Trustee. The execution of such certificate by the Trustee upon any
Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Issuer, and the Issuer shall deliver such Security to the Trustee for
cancellation as provided in Section 2.10, together with a written
statement (which need not comply with Section 14.5 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never
been issued and sold by the Issuer, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 2.7 DENOMINATION OF SECURITIES; PAYMENTS OF INTEREST. The
Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations established as contemplated by
Section 2.3 or, if not so established, in denominations of $1,000 and any
integral multiple thereof. The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in
accordance with such plan as the officers of the Issuer executing the same
may determine with the approval of the Trustee, as evidenced by the
execution and authentication thereof.
The Securities of each series shall bear interest, if any, from the
date, and such interest shall be payable on the Interest Payment Dates,
established as contemplated by Section 2.3.
The Person in whose name any Registered Security of any series is
registered at the close of business on any Record Date applicable to such
series with respect to any Interest Payment Date for such series shall be
entitled to receive the interest, if any, payable on such Interest Payment
Date notwithstanding any transfer, exchange or conversion of such
Registered Security subsequent to the Record Date and prior to such
Interest Payment Date, except if and to the extent the Issuer shall
default in the payment of the interest due on such Interest Payment Date,
in which case such defaulted interest shall be paid to the Persons in
whose names Outstanding Registered Securities of such series are
registered at the close of business on a subsequent Record Date (which
shall be not less than five Business Days prior to the date of payment of
such defaulted interest) established by notice given by mail by or on
behalf of the Issuer to the Holders of Registered Securities of such
series not less than 15 days preceding such subsequent Record Date. The
term "Record Date", as used with respect to any Interest Payment Date
(except a date for payment of defaulted interest) for the Securities of
any series, shall mean the date specified as such in the terms of the
Registered Securities of such series established as contemplated by
Section 2.3.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 2.8 REGISTRATION, TRANSFER AND EXCHANGE. The Issuer will
keep, or cause to be kept, at the Corporate Trust Office and at each other
office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers
(collectively, the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, it will provide for the
registration of Registered Securities of such series and the registration
of transfer of Registered Securities of such series. The Security
Register shall be in written form in the English language or in any other
form capable of being converted into such form within a reasonable time.
At all reasonable times such register or registers not maintained by the
Trustee shall be open for inspection by the Trustee. Unless and until
otherwise determined by the Issuer pursuant to Section 2.3, the Security
Register with respect to each series of Registered Securities shall be
kept solely at the Corporate Trust Office and, for this purpose, the
Trustee shall be designated the "Security Registrar."
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency, the Issuer
shall execute and the Trustee shall authenticate and deliver in the name
of the transferee or transferees a new Registered Security or Registered
Securities of the same series, maturity date and interest rate in
authorized denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached to any
temporary global Unregistered Securities) shall be transferable as set
forth in the preceding paragraph solely upon delivery of such Securities
at any such office or agency.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth
below) may be exchanged for one or more Registered Securities of such
series in authorized denominations for a like aggregate principal amount,
upon surrender of such Registered Securities to be exchanged at the office
or agency to be maintained for such purpose in accordance with Section 3.2
and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise specified for a
particular series pursuant to Section 2.3, at the option of the Holder
thereof, Unregistered Securities of any series may be exchanged for
Registered Securities of such series in authorized denominations for a
like aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the office or agency to be maintained for
such purpose in accordance with Section 3.2, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured Coupons
and all matured Coupons in default thereto appertaining, and upon payment,
if the Issuer shall so require, of the charges hereinafter provided. At
the option of the Holder thereof, if Unregistered Securities of any
series, maturity date, interest rate and Original Issue Date are issued in
more than one authorized denomination, except as otherwise specified for a
particular series pursuant to Section 2.3, such Unregistered Securities
may be exchanged for other Unregistered Securities of such series in
authorized denominations for a like aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the office or
agency to be maintained for such purpose in accordance with Section 3.2 or
as specified for a particular series pursuant to Section 2.3, with, in the
case of Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter
provided. Unless otherwise specified for a particular series pursuant to
Section 2.3, Registered Securities of any series may not be exchanged for
Unregistered Securities of such series. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive. All Securities and Coupons surrendered
upon any exchange or transfer provided for in this Indenture shall be
promptly cancelled by the Trustee and the Trustee will deliver a
certificate of cancellation thereof to the issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed by, the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities, other than exchanges
pursuant to Sections 2.11, 8.5 and 11.2 not involving any transfer. No
service charge shall be made for any such transaction.
The Issuer shall not be required to (a) issue, exchange or register
a transfer of any Securities of any series for a period of 15 days next
preceding the first mailing or publication of notice of redemption of
Securities of such series to be redeemed or (b) exchange or register the
transfer of any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a
portion of the Securities of a series may not be transferred except as a
whole by the Depository for such Registered Global Security to a nominee
of such Depository or by a nominee of such Depository to such Depository
or another nominee of such Depository or by such Depository or any such
nominee to a successor Depository for such Registered Global Security or a
nominee of such successor Depository.
If at any time a Depository for any Registered Securities of a
series represented by one or more Registered Global Securities notifies
the Issuer that it is unwilling or unable to continue as Depository for
such Registered Securities or if at any time any such Depository shall no
longer be eligible as a Depository, the Issuer shall appoint a successor
Depository with respect to the Registered Securities held by such
Depository. If a successor Depository is not appointed by the Issuer
within 90 days after the Issuer receives such notice or becomes aware of
such ineligibility, the Registered Securities of such series shall no
longer be represented by one or more Registered Global Securities held by
such Depository, and the Issuer shall execute, and the Trustee, upon
receipt of an Issuer Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and deliver
Securities of such series in definitive registered form without coupons,
in any authorized denominations and in an aggregate principal amount equal
to the principal amount of the Registered Global Security or Securities
held by such Depository in exchange for such Registered Global Security or
Securities.
Within seven days after the occurrence of an Event of Default
specified in clause (a), (b) or (c) of Section 5.1 with respect to any
series of Registered Global Securities, the Issuer shall execute, and the
Trustee shall authenticate and make available for delivery, Securities of
such series in definitive registered form without Coupons, in any
authorized denominations and in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities
representing Registered Securities of such series in exchange for such
Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine
that the Registered Securities of a particular series shall no longer be
represented by a Registered Global Security or Securities. In such event,
the Issuer shall execute, and the Trustee, upon receipt of an Issuer Order
for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, Securities of such series in
definitive registered form without Coupons, in any authorized
denominations and in an aggregate principal amount equal to the principal
amount of the Registered Global Security or Securities representing
Registered Securities of such series in exchange for such Registered
Global Security or Securities.
If so specified by the Issuer pursuant to Section 2.3 with respect
to Securities of a particular series represented by a Registered Global
Security, the Depository for such Registered Global Security may surrender
such Registered Global Security in exchange in whole or in part for
Securities of such series in definitive registered form on such terms as
are acceptable to the Issuer and such Depository. Thereupon, the Issuer
shall execute, and the Trustee shall authenticate and make available
for delivery:
(i) to each Person specified by such Depository a new
Registered Security or Securities of such series, in any authorized
denominations requested by such Person, in an aggregate principal amount
equal to, and in exchange for, such Person's beneficial interest in the
Registered Global Security; and
(ii) to such Depository a new Registered Global Security in a
denomination equal to the difference between the principal amount of the
surrendered Registered Global Security and the aggregate principal amount
of Registered Securities authenticated and delivered pursuant to clause
(i) above.
Upon the exchange of any Registered Global Security for Securities
in definitive registered form without Coupons, in authorized
denominations, such Registered Global Security shall be cancelled by the
Trustee or an agent of the Issuer or the Trustee. Securities in
definitive registered form without Coupons issued in exchange for a
Registered Global Security pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depository for such
Registered Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee or an agent
of the Issuer or the Trustee. The Trustee or such agent shall deliver
such Securities to or as directed by the Persons in whose names such
Securities are so registered.
All Securities issued upon any registration of transfer or exchange
of Securities shall be valid obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent
of the Issuer or the Trustee (any of which, other than the Issuer, shall
rely on an Officers' Certificate and an Opinion of Counsel) shall be
required to exchange any Unregistered Security for a Registered Security
if such exchange would result in adverse Federal income tax consequences
to the Issuer (such as, for example, the inability of the Issuer to deduct
from its income, as computed for Federal income tax purposes, the interest
payable on the Unregistered Securities) under then applicable United
States Federal income tax laws.
Section 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN
SECURITIES. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and
upon receipt of an Issuer Order, the Trustee shall authenticate and make
available for delivery a new Security of the same series, maturity date,
interest rate, Interest Payment Date or Dates and Original Issue Date,
bearing a number or other distinguishing symbol not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced
Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen, with Coupons corresponding to the Coupons appertaining to
the Securities so mutilated, defaced, destroyed, lost or stolen, or in
exchange or substitution for the Security to which such mutilated,
defaced, destroyed, lost or stolen Coupon appertained, with Coupons
appertaining thereto corresponding to the Coupons so mutilated, defaced,
destroyed, lost or stolen. In every case the applicant for a substitute
Security or Coupon shall furnish to the Issuer and to the Trustee or any
agent of the Issuer or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them and any
agent of either of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft
of such Security or Coupon and of the ownership thereof and, in the case
of mutilation or defacement, shall surrender the Security and related
Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee or its agent)
connected therewith. In case any Security or Coupon which has matured or
is about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer may,
instead of issuing a substitute Security, pay or authorize the payment of
the same or the relevant Coupon (without surrender thereof except in the
case of a mutilated or defaced Security or Coupon), if the applicant for
such payment shall furnish to the Issuer and to the Trustee or any agent
of the Issuer or the Trustee such security or indemnity as may be required
by them to save each of them harmless, and, in every case of destruction,
loss or theft, evidence to their satisfaction of the destruction, loss or
theft of such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant
to the provisions of this Section by virtue of the fact that any such
Security or Coupon is destroyed, lost or stolen shall constitute an addi-
tional contractual obligation of the Issuer, whether or not the destroyed,
lost or stolen Security or Coupon shall be at any time enforceable by
anyone and shall be entitled to all the benefits of (but shall be subject
to all the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities or Coupons of such
series duly authenticated and delivered hereunder. All Securities and
Coupons shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, defaced, destroyed,
lost or stolen Securities and Coupons 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 2.10 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF. All
Securities and Coupons surrendered for payment, redemption, registration
of transfer or exchange, or for credit against any payment in respect of a
sinking or analogous fund, if surrendered to the Issuer or any agent of
the Issuer or any agent of the Trustee, shall be delivered to the Trustee
or its agent for cancellation or, if surrendered to the Trustee, shall be
cancelled by it; and no Securities or Coupons shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee or its agent shall cancel Securities and Coupons
held by it and deliver a certificate of cancellation to the Issuer. If
the Issuer or its agent shall acquire any of the Securities or Coupons,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities or Coupons unless and until
the same are delivered to the Trustee or its agent for cancellation.
Section 2.11 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the
Trustee shall authenticate and deliver temporary Securities for such
series (printed, lithographed, typewritten or otherwise reproduced, in
each case in form satisfactory to the Trustee). Temporary Securities of
any series shall be issuable as Registered Securities without Coupons, or
as Unregistered Securities with or without Coupons attached thereto, of
any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may
be determined by the Issuer with the concurrence of the Trustee as
evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture
as may be appropriate. Every temporary Security shall be executed by the
Issuer and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in exchange for
such definitive Securities in registered form without charge at each
office or agency to be maintained for such purpose in accordance with
Section 3.2 and, in the case of Unregistered Securities, at any office or
agency to be maintained for such purpose as specified pursuant to
Section 2.3, and the Trustee shall authenticate and make available for
delivery in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series in
authorized denominations and, in the case of Unregistered Securities,
having attached thereto any appropriate Coupons. Until so exchanged, the
temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series, unless
otherwise established pursuant to Section 2.3. The provisions of this
Section are subject to any restrictions or limitations on the issue and
delivery of temporary Unregistered Securities of any series that may be
established pursuant to Section 2.3 (including any provision that
Unregistered Securities of such series initially be issued in the form of
a single Global Unregistered Security to be delivered to a depositary or
agency located outside the United States and the procedures pursuant to
which definitive Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
Section 2.12 COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 2.3 for Securities of any series,
interest, if any, on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE THREE
COVENANTS OF THE ISSUER
Section 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer
covenants and agrees for the benefit of each series of Securities that it
will duly and punctually pay or cause to be paid the principal of, and
interest, if any, on, each of the Securities of such series (together with
any additional amounts payable pursuant to the terms of such Securities)
at the place or places, at the respective times and in the manner provided
in such Securities and in the Coupons, if any, appertaining thereto and in
this Indenture. The interest on Securities with Coupons attached
(together with any additional amounts payable pursuant to the terms of
such Securities) shall be payable only upon presentation and surrender of
the several Coupons for such interest installments as are evidenced
thereby as they severally mature. If any temporary Unregistered Security
provides that interest thereon may be paid while in temporary form, the
interest on any such temporary Unregistered Security (together with any
additional amounts payable pursuant to the terms of such Security) shall
be paid, as to the installments of interest evidenced by Coupons attached
thereto, if any, only upon presentation and surrender thereof, and, as to
the other installments of interest, if any, only upon presentation of such
temporary Unregistered Security for notation thereon of the payment of
such interest, in each case subject to any restrictions that may be
established pursuant to Section 2.3. The interest on Registered
Securities (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only to or upon the written
order of the Holders thereof and, at the option of the Issuer, may be paid
by wire transfer or by mailing checks for such interest payable to or upon
the written order of such Holders at their last addresses as they appear
on the registry books of the Issuer. If interest is to be paid by wire
transfer, such Holders must notify the Trustee within 5 Business Days
prior to the Record Date of the wire instructions.
Section 3.2 OFFICES FOR PAYMENTS, ETC. So long as any Registered
Securities are outstanding hereunder, the Issuer will maintain in The City
of New York, State of New York an office or agency where the Registered
Securities of each series may be presented for payment, where the
Securities of each series may be presented for exchange as in this
Indenture provided, where the Registered Securities of each series may be
presented for registration of transfer as in this Indenture provided and
where the Securities of each series that is convertible may be presented
for conversion as in this Indenture provided.
The Issuer will maintain one or more offices or agencies in a city
or cities located outside the United States (including any city in which
such an office or agency is required to be maintained under the rules of
any stock exchange on which the Securities of any series are listed) where
the Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on any
Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an office or agency of the Issuer
within the United States, nor will any payment be made by transfer to an
account in, or by mail to an address in, the United States unless pursuant
to applicable United States laws and regulations then in effect such
payment can be made without adverse tax consequences to the Issuer.
Notwithstanding the foregoing, payments on Unregistered Securities of any
series and Coupons appertaining thereto may be made at an office or agency
of the Issuer maintained in the City of New York, State of New York, if
such payment at each office or agency maintained by the Issuer outside the
United States for payment on such Unregistered Securities is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Issuer will maintain in The City of New York an office or
agency where notices and demands to or upon the Issuer in respect of the
Securities of any series, the Coupons appertaining thereto or this
Indenture may be served.
The Issuer will give to the Trustee prompt written notice of the
location of each such office or agency and of any change of location
thereof. In case the Issuer shall fail to maintain any office or agency
required by this Section to be located in The City of New York, State of
New York or shall fail to give such notice of the location or of any
change in the location of any of the above offices or agencies,
presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee, and, in such event, the Trustee
shall act as the Issuer's agent to receive all such presentations,
surrenders, notices and demands.
The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of any series and any Coupons
appertaining thereto may be presented for payment, where the Securities of
such series may be presented for exchange as in this Indenture provided,
where the Registered Securities of such series may be presented for
registration of transfer as in this Indenture provided and where the
Securities of each series that is convertible may be presented for
conversion as in this Indenture provided, and the Issuer may from time to
time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain any office or agency provided for in this Section.
The Issuer will give to the Trustee prompt written notice of any such
designation or rescission thereof and of change in the location of any
such other office or agency.
Section 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE.
The Issuer, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee,
so that there shall at all times be a Trustee with respect to each series
of Securities hereunder.
Section 3.4 PAYING AGENTS. Whenever the Issuer shall appoint a
paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(a) that such paying agent will hold all sums received by it
as such agent for the payment of the principal of or interest, if any, on
the Securities of such series (whether such sums have been paid to it by
the Issuer or by any other obligor on the Securities of such series) in
trust for the benefit of the Holders of the Securities of such series
entitled thereto and the Coupons appertaining thereto, if any, or of the
Trustee until such sums shall be paid to such Holders or otherwise
disposed of as herein provided;
(b) that such paying agent will give the Trustee notice of any
failure by the Issuer (or by any other obligor on the Securities of such
series) to make any payment of the principal of or interest on the
Securities of such series when the same shall be due and payable; and
(c) at any time during the continuance of any such failure,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal of
or interest, if any, on the Securities of any series, deposit with the
paying agent a sum sufficient to pay such principal or interest so
becoming due, such sum to be held in trust for the benefit of the Holders
of the Securities of such series entitled to such principal or interest,
and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the
principal of or interest, if any, on the Securities of such series, set
aside, segregate and hold in trust for the benefit of the Holders of the
Securities of such series or the Coupons, if any, appertaining thereto a
sum sufficient to pay such principal or interest, if any, so becoming due
until such sums shall be paid to such Holders or otherwise disposed of as
herein provided. The Issuer will promptly notify the Trustee of any
failure to take such action.
Anything in this section to the contrary notwithstanding, but
subject to Section 10.1, the Issuer may at any time, for the purpose of
obtaining a satisfaction and discharge with respect to one or more or all
series of Securities hereunder, or for any other reason, pay or cause to
be paid to the Trustee all sums held in trust for any such series by the
Issuer or any paying agent hereunder, as required by this Section, such
sums to be held by the Trustee upon the trusts herein contained, and, upon
such payment by any paying agent to the Trustee, such paying agent shall
be released from all further liability with respect to such money.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to
the provisions of Sections 10.3 and 10.4.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
Section 4.1 ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS. The Issuer and any other obligor on the Securities
covenant and agree that they will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Registered Securities of each
series:
(a) semi-annually and not more than 15 days after each Record
Date for the payment of interest on such Registered Securities, as of such
Record Date and on dates to be determined pursuant to Section 2.3 for
non-interest bearing Registered Securities, in each year; and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request, as of a
date not more than 15 days prior to the time such information is
furnished;
provided that if and so long as the Trustee shall be the Security
Registrar for such series and all of the Securities of such series are
Registered Securities, such list shall not be required to be furnished.
Section 4.2 PRESERVATION AND DISCLOSURE OF SECURITYHOLDERS LISTS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders
of each series of Registered Securities (i) contained in the most recent
list furnished to it as provided in Section 4.1, (ii) received by it in
the capacity of Security Registrar for such series, if so acting, and
(iii) filed with it within the two preceding years pursuant to Section
4.4(c)(ii). The Trustee may destroy any list furnished to it as provided
in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish
to the Trustee reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular series (in
which case the applicants must all hold Securities of such series) or with
Holders of all Securities with respect to their rights under this
Indenture or under such Securities and such application is accompanied by
a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five Business Days
after the receipt of such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section; or
(ii) inform such applicants as to the approximate number
of Holders of Registered Securities of such series or of all Registered
Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee, in accordance with the
provisions of such subsection (a) and as to the approximate cost of
mailing to such Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford to such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of such series or all Holders of
Registered Securities, whose name and address appears in the information
preserved at the time by the Trustee in accordance with the provisions of
such subsection (a) a copy of the form of proxy or other communication
which is specified in such request, with reasonable promptness after a
tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless
within five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Registered Securities of such series or of all
Registered Securities, as the case may be, or would be in violation of
applicable law. Such written statement shall specify the basis of such
opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of
an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met, and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with
reasonable promptness after the entry of such order and the renewal of
such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Each and every Holder of Securities and Coupons, by
receiving and holding the same, agrees with the Issuer and the Trustee
that neither the Issuer nor the Trustee nor any agent of the Issuer or the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in
accordance with the provisions of subsection (b) of this Section,
regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under such subsection (b).
Section 4.3 REPORTS BY THE ISSUER. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Issuer may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or if the Issuer is not required to file
information, documents or reports pursuant to either of such Sections,
then to file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents, and reports which
may be required pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a debt security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(b) to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants provided for in
this Indenture as may be required from time to time by such rules and
regulations;
(c) to transmit by mail to the Holders of Securities within 30
days after the filing thereof with the Trustee, in the manner and to the
extent provided in Section 4.4(c), such summaries of any information,
documents and reports required to be filed by the Issuer pursuant to
subsections (a) and (b) of this Section as may be required to be
transmitted to such Holders by rules and regulations prescribed from time
to time by the Commission; and
(d) to furnish to the Trustee, not less often than annually, a
brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her
knowledge of the Issuer's compliance with all conditions and covenants
under this Indenture (such compliance to be determined without regard to
any period of grace or requirement of notice provided under this
Indenture).
Section 4.4 REPORTS BY THE TRUSTEE. (a) Annually, not later than
60 days after May 15 of each year, the Trustee shall transmit by mail to
the Holders of the Securities of each series, as provided in
subsection (c) of this Section, a brief report dated as of such May 15
with respect to any of the following events which may have occurred within
the twelve-month period ending on such May 15 (but if no event has
occurred within such period no report need be transmitted):
(i) any change to its eligibility under Section 6.9 and
its qualification under Section 6.8;
(ii) the creation of or any material change to a
relationship specified in Section 6.8(c);
(iii) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date of
such report and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities of such series, on any
property or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such advances if
such advances so remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Securities of such series Outstanding on the date
of such report;
(iv) any change to the amount, interest rate and maturity
date of all other indebtedness owing by the Issuer (or by any other
obligor on the Securities) to the Trustee in its individual capacity on
the date of such report, with a brief description of any property held as
collateral security therefor, except any indebtedness based upon a
creditor relationship arising in any manner described in Sec-
tion 6.13(b)(2),(3),(4) or (6);
(v) any change to the property and funds of the Issuer,
if any, physically in the possession of the Trustee (as such) on the date
of such report;
(vi) any release, or release and substitution of property
subject to the lien of the Indenture (and the consideration therefor, if
any) which the Trustee has not previously reported;
(vii) any additional issue of Securities which the
Trustee has not previously reported; and
(viii) any action taken by the Trustee in the performance
of its duties under this Indenture which it has not previously reported
and which in its opinion materially affects the Securities of such series,
except action in respect of a default, notice of which has been or is to
be withheld by it in accordance with the provisions of Section 5.11.
(b) The Trustee shall transmit to the Holders of each series,
as provided in subsection (c) of this Section, a brief report with respect
to the character and amount of any advances (and if the Trustee elects so
to state, the circumstances surrounding the making thereof) made by the
Trustee, as such, since the date of the last report transmitted pursuant
to the provisions of subsection (a) of this Section (or if no such report
has yet been so transmitted, since the date of this Indenture) for the
reimbursement of which it claims or may claim a lien or charge, prior to
that of the Securities of such series, on property or funds held or
collected by it as Trustee and which it has not previously reported
pursuant to this subsection (b), except that the Trustee shall not be
required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount
of the Securities of such series outstanding at such time, such report to
be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by
mail:
(i) to all Holders of Registered Securities, as the names
and addresses of such Holders appear upon the Security Register;
(ii) to such other Holders of Securities as have, within
two years preceding such transmission, filed their names and addresses
with the Trustee for that purpose; and
(iii) except in the case of reports pursuant to
subsection (b), to each Holder of a Security whose name and address are
preserved at the time by the Trustee as provided in Section 4.2(a).
(d) A copy of each such report shall, at the time of such
transmission to the Holders, be furnished to the Issuer and be filed by
the Trustee with each stock exchange, if any, upon which the Securities of
any series are listed and also with the Commission. The Issuer agrees to
notify the Trustee when and as the Securities of such series become
admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY;
WAIVER OF DEFAULT. "Event of Default" with respect to Securities of any
series, wherever used herein, means each of the following events which
shall have occurred and be continuing (whatever the reason for such Event
of Default and whether it shall 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 installment of interest upon
any of the Securities of such series as and when the same shall become due
and payable (whether or not payments prohibited by the provisions of
Article 12 hereof), and continuance of such default for a period of 30
days; provided, however, that if the Issuer is permitted by the terms of
the Securities of such series to defer the payment in question, the date
on which such payment is due and payable shall be the date on which the
Issuer is required to make payment following such deferral, if such
deferral has been elected pursuant to the terms of the Securities; or
(b) default in the payment of all or any part of the principal
of any of the Securities of such series as and when the same shall become
due and payable (whether or not payments prohibited by the provisions of
Article 12 hereof), whether at Maturity, upon purchase by the Issuer at
the option of the Holder, upon any redemption, by declaration or other-
wise; provided, however, that if the Issuer is permitted by the terms of
the Securities of such series to defer the payment in question, the date
on which such payment is due and payable shall be the date on which the
Issuer is required to make payment following such deferral, if such
deferral has been elected pursuant to the terms of the Securities; or
(c) default in the deposit or payment of any sinking fund or
analogous payment for the benefit of the Securities of such series as and
when the same shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of the Issuer
in the Securities of such series or in this Indenture contained (other
than a covenant or agreement expressly included herein solely for the
benefit of Securities of other series) for a period of 60 days after the
date on which written notice specifying such failure, stating that such
notice is a "Notice of Default" hereunder and demanding that the Issuer
remedy the same, shall have been given by registered or certified mail,
return receipt requested, to the Issuer by the Trustee, or to the Issuer
and the Trustee by the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of all series affected thereby; or
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, adjudging the Issuer a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Issuer
under any applicable law, or appointing a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Issuer or
for any substantial part of the property of the Issuer, or ordering the
winding up or liquidation of the affairs of the Issuer, and such decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(f) the Issuer shall commence a voluntary case or proceeding
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or any other case or proceeding to be adjudicated a
bankrupt or insolvent, or consent to the entry of a decree or order for
relief in an involuntary case under any such law, or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable law, or consent to the filing of such petition
or to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
Issuer or for any substantial part of the property of the Issuer, or make
any general assignment for the benefit of creditors, or the notice by it
in writing of its inability to pay its debts generally as they become due,
or the taking of any corporate action by the Issuer in furtherance of any
such action;
(g) entry of final judgments against the Issuer or Consumers
Power Company aggregating in excess of $25,000,000 which remain
undischarged or unbonded for a period (during which execution shall not be
effectively stayed) of 60 days;
(h) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Issuer (including a
default with respect to Securities of any series other than that series)
or under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any indebtedness for
money borrowed by the Issuer (including this Indenture), whether such
indebtedness now exists or shall hereafter be created, which default shall
have resulted in such indebtedness in an aggregate principal amount
exceeding $25,000,000 becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable, without
such acceleration having been rescinded or annulled within a period of
10 days after there shall have been given, by registered or certified
mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 10% in principal amount of the Outstanding Securities
of that series a written notice specifying such default and requiring the
Company to cause such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder; or
(i) any other Event of Default provided in the
supplemental indenture or Board Resolution establishing the terms of such
series of Securities as provided in Section 2.3 or in the form of Security
for such series.
If an Event of Default shall have occurred and be continuing then, unless
the principal of all the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of all the Securities of such series then
Outstanding, by notice in writing to the Issuer (and to the Trustee if
given by such Holders), may declare the entire principal of all the
Securities of such series then Outstanding and interest accrued thereon,
if any, to be due and payable immediately, and upon any such declaration
the same shall become immediately due and payable.
The foregoing paragraph, however, is subject to the condition that
if, at any time after the principal of the Securities of one or more
series shall have been so declared due and payable, and before any judg-
ment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the Issuer shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series and the principal of all
Securities of such series which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest (or
Yield to Maturity, in the case of Original Issue Discount Securities)
specified in the Securities of such series, to the date of such payment or
deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of negligence or bad faith, and if any and all
Events of Default under this Indenture with respect to such series, other
than the non-payment of the principal of Securities of such series which
shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein - then, and in every such case, the
Holders of a majority in aggregate principal amount of all the Securities
of such affected series then Outstanding by written notice to the Issuer
and to the Trustee, may direct the Trustee to waive all defaults with
respect to such series and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend
to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions
hereof, then, from and after such declaration, unless such declaration has
been rescinded and annulled, the principal amount of such Original Issue
Discount Securities shall be deemed, for all purposes hereunder, to be
such portion of the principal thereof as shall be due and payable as a
result of such acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such acceleration,
together with interest, if any, thereon and all other amounts owing
thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
Section 5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY
PROVE DEBT. The Issuer covenants that (a) in case default shall be made
in the payment of any installment of interest on any of the Securities of
any series when such interest shall have become due and payable, and such
default shall have continued for a period of 30 days, or (b) in case
default shall be made in the payment of all or any part of the principal
of any of the Securities of any series when the same shall have become due
and payable, whether at Maturity, upon redemption, by declaration or
otherwise -- then, upon demand of the Trustee, the Issuer will pay to the
Trustee for the benefit of the Holders of the Securities of such series
the whole amount that then shall have become due and payable on all
Securities of such series, including all Coupons, for principal or
interest, as the case may be (with interest to the date of such payment
upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest (or Yield to Maturity,
in the case of Original Issue Discount Securities) specified in the
Securities of such series); and in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee, its agents, attorneys
and counsel, and any expenses and liabilities incurred by such parties,
and all advances made by the Trustee except as a result of its negligence
or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of such series to the Holders,
whether or not the Securities of such series be overdue.
In case the Issuer 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 action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against
the Issuer or other obligor upon the Securities of such series and collect
in the manner provided by law out of the property of the Issuer or other
obligor upon the Securities of such series, wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer
or any other obligor upon the Securities of any series under Title 11 of
the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or
such other obligor, or to the creditors or property of the Issuer or such
other obligor, the Trustee, irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of the principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal amount
as may be specified in the terms of such series) owing and unpaid in
respect of the Securities of each series, and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for reasonable compensation to the
Trustee and its agents, attorneys and counsel, and for reimbursement of
all expenses and liabilities incurred, and all advances made, by the
Trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the Issuer
or such other obligor, or to the creditors or property of the Issuer or
such other obligor;
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities of each series in any
election of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings; and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the
Trustee on their behalf; and any trustee, receiver, liquidator, custodian
or other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient
to cover reasonable compensation to the Trustee, and its agents, attorneys
and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except, in each case, as a result of
negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of
any Holder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture,
or under any of the Securities of any series or Coupons appertaining
thereto, may be prosecuted and enforced by the Trustee without the
possession of any of the Securities of such series or Coupons appertaining
thereto or the production thereof at any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Trustee and its agents, attorneys
and counsel, shall be for the ratable benefit of the Holders of the
Securities or Coupons appertaining to such Securities in respect of which
such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which
the Trustee shall be a party), the Trustee shall be held to represent all
the Holders of the Securities and Coupons appertaining thereto in respect
to which action was taken, and it shall not be necessary to make any
Holders of such Securities or Coupons parties to any such proceedings.
Section 5.3 APPLICATION OF PROCEEDS. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any
series shall be applied in the following order at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on account
of principal or interest, upon presentation of the several Securities and
Coupons appertaining thereto in respect of which moneys have been
collected and stamping (or otherwise noting) thereon the payment, and upon
surrender thereof if fully paid, or issuing Securities of the same series
in reduced principal amounts in exchange for the presented Securities if
only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection
applicable to such series, including reasonable compensation to the
Trustee and its agents, attorneys and counsel and of all expenses and
liabilities incurred, and all advances made, by the Trustee except as a
result of negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest, if any, on the
Securities of such series in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee and to the extent permitted by
law) upon the overdue installments of interest at the same rate as the
rate of interest (or Yield to Maturity, in the case of Original Issue
Discount Securities) specified in such Securities, such payments to be
made ratably to the Persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and be then
due and payable, to the payment of the whole amount then owing and unpaid
upon all the Securities of such series for principal and interest, if any,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee and to the extent permitted by
law) upon overdue installments of interest at the same rate as the rate of
interest (or Yield to Maturity, in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case such
moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the payment of such
principal and interest, without preference or priority of principal over
interest, or of interest over principal, or of any installment of interest
over any other installment of interest, or of any Security of such series
over any other Security of such series, ratably to the aggregate of such
principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other Person lawfully entitled thereto.
Section 5.4 SUITS FOR ENFORCEMENT. In case an Event of Default
has occurred, has not been waived and is continuing, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture
or to enforce any other legal or equitable right vested in the Trustee by
this Indenture or by law.
Section 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS.
In case the Trustee or any Holder shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then, and in every such case,
the Issuer, the Trustee and the Holders shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Holders shall continue as though
no such proceedings had been taken.
Section 5.6 LIMITATIONS ON SUITS BY SECURITYHOLDERS. No Holder of
any Security of any series or of any Coupon appertaining thereto shall
have any right by virtue or by availing of any provision of this Indenture
to institute any action or proceeding at law or in equity or in bankruptcy
or otherwise upon or under or with respect to this Indenture, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders
of not less than 25% in aggregate principal amount of the Securities of
each affected series then Outstanding (determined as provided herein and
voting as one class) shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein
or thereby and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
action or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 5.9; it
being understood and intended, and being expressly covenanted by the taker
and Holder of every Security or Coupon with every other taker and Holder
and the Trustee, that no one or more Holders of Securities of any series
or Coupons appertaining thereto shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holder of Securities
or Coupons appertaining thereto, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under
this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Securities of the affected
series and Coupons. For the protection and enforcement of the provisions
of this Section, each and every Securityholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO RECEIVE
PRINCIPAL AND INTEREST AND TO INSTITUTE CERTAIN SUITS. Notwithstanding
any other provision in this Indenture and any provision of any Security,
the right of any Holder of any Security or Coupon to receive payment of
the principal of and interest, if any, on such Security or Coupon on or
after the respective due dates expressed in such Security or Coupon or any
date fixed for redemption, or to institute suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section 5.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER OF DEFAULT. Except as provided in Section 5.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of
Securities or Coupons is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law,
be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities
or Coupons to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right
or power or shall be construed to be a waiver of any such Event of Default
or an acquiescence therein; and, subject to Section 5.6, every right and
power given by this Indenture or by law to the Trustee or to the Holders
of Securities or Coupons may be exercised from time to time, and as often
as shall be deemed expedient, by the Trustee or by the Holders of
Securities or Coupons, as the case may be.
Section 5.9 CONTROL BY HOLDERS OF SECURITIES. The Holders of a
majority in aggregate principal amount of the Securities of each series
affected at the time Outstanding (determined as provided herein and voting
as one class) 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 upon the Trustee with respect to
the Securities of such affected series by this Indenture; provided that
such direction shall not be otherwise than in accordance with law and the
provisions of this Indenture; and provided further that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be
taken or if the Trustee in good faith by its board of directors, its
executive committee or a trust committee of directors or Responsible
Officers of the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or that the
actions or forbearances specified in or pursuant to such direction would
be unduly prejudicial to the interests of Holders of the Securities of all
affected series not joining in the giving of said direction, it being
understood that (subject to Section 6.1) the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in
its discretion to take any action deemed proper by the Trustee and which
is not inconsistent with such direction or directions by Securityholders.
Section 5.10 WAIVER OF PAST DEFAULTS. Prior to the declaration of
acceleration of the Maturity of any Securities as provided in Section 5.1,
the Holders of a majority in aggregate principal amount of the Securities
of all series at the time Outstanding with respect to which a default or
an Event of Default shall have occurred and be continuing (determined as
provided herein and voting as one class) may on behalf of the Holders of
all such affected Securities waive any past default or Event of Default
described in Section 5.1 and its consequences, except a default or an
Event of Default (i) in the payment of the principal of or interest, if
any, on any Security of such series, or (ii) in respect of a covenant or
provision hereof or of any Security which cannot be modified or amended
without the consent of the Holder of each Security affected. In the case
of any such waiver, the Issuer, the Trustee and the Holders of all such
affected Securities shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured, and not to
have occurred for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
Section 5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD
IN CERTAIN CIRCUMSTANCES. The Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to such series known to the Trustee
(i) if any Unregistered Securities of such series are then Outstanding, to
the Holders thereof by publication at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York, and (ii) to
all Holders of Securities of such series in the manner and to the extent
provided in Section 4.4(c), unless in each case such defaults shall have
been cured before the mailing or publication of such notice (the term
"default" for the purpose of this Article being hereby defined to mean any
event or condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided that, except in the case of default
in the payment of the principal of or the interest, if any, on any of the
Securities of such series, or in the payment of any sinking fund
installment or analogous payment on such series, the Trustee shall be
protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
trustees and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders of such series.
Section 5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO
PAY COSTS. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his or her acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the
case of any suit relating to or arising under clause (d) or (g) of Section
5.1 (if the suit relates to the Securities of more than one but less than
all series), 10% in aggregate principal amount of the Securities then
Outstanding and affected thereby, or, in the case of any suit relating to
or arising under clause (d) or (g) (if the suit relates to all the
Securities then Outstanding), 10% in aggregate principal amount of all
Securities then Outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
the interest (including interest evidenced by any Coupon) on any Security
on or after the due date expressed in such Security or Coupon or any date
fixed for redemption.
Section 5.13 WAIVER OF STAY OR EXTENSION LAWS. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or
the performance of this Indenture; and the Issuer (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
CONCERNING THE TRUSTEE
Section 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING
DEFAULT; PRIOR TO DEFAULT. The Trustee, prior to the occurrence of an
Event of Default with respect to the Securities of a particular series and
after the curing or waiving of all Events of Default which may have
occurred with respect to such series, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture. In
case an Event of Default with respect to the Securities of a particular
series has occurred (which has not been cured or waived), the Trustee
shall exercise with respect to such series 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 or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving of
all such Events of Default which may have occurred with respect to such
series:
(i) the duties and obligations of the Trustee with
respect to the Securities of such series 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
(ii) 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
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any
such statements, certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible 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 an
appropriate direction of the Holders pursuant to Section 5.9 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 there shall be reasonable
grounds for believing that the repayment of such funds or adequate
indemnity against such liability is not reasonably assured to it.
Section 6.2 CERTAIN RIGHTS OF THE TRUSTEE. Subject to
Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, Coupon, security 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 Issuer
mentioned herein shall be sufficiently evidenced by an Officers' Cer-
tificate (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 Issuer;
(c) the Trustee may consult with counsel of its choice and any
written advice or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted to be taken by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities which
might 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, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving of
all such Events of Default, 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, appraisal, bond, debenture, note, Coupon,
security or other paper or document unless requested in writing so to do
by the Holders of not less than a majority in aggregate principal amount
of the Securities of all affected series then Outstanding; provided that,
if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses
or liabilities as a condition to proceeding; the reasonable expenses of
every such investigation shall be paid by the Issuer or, if paid by the
Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys not regularly in its employ, and the Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
Section 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained
herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or sufficiency of this
Indenture or of the Securities or Coupons, other than as to the due
execution and delivery of the Indenture by the Trustee. The Trustee shall
not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
Section 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS;
COLLECTIONS, ETC. The Trustee or any agent of the Issuer or the Trustee,
in its individual or any other capacity, may become the owner or pledgee
of Securities or Coupons with the same rights it would have if it were not
the Trustee or such agent and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Issuer and receive, collect, hold and retain
collections from the Issuer with the same rights it would have if it were
not the Trustee or such agent.
Section 6.5 MONEYS HELD BY TRUSTEE. Subject to the provisions of
Section 10.4, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to
the extent required by mandatory provisions of law. Neither the Trustee
nor any agent of the Issuer or the Trustee shall be under any liability
for interest on any moneys received by it hereunder.
Section 6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS
PRIOR CLAIM. The Issuer covenants and agrees to pay to the Trustee from
time to time, as agreed to in writing, and the Trustee shall be entitled
to, reasonable compensation (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust),
and the Issuer covenants and agrees to pay or reimburse the Trustee upon
its request for all reasonable expenses and fees, disbursements and
advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all agents and
other persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Trustee arising out of or in
connection with the acceptance or administration of this Indenture or the
trusts hereunder and the Trustee's duties hereunder, including the costs
and expenses of defending itself against or investigating any claim of
liability in the premises. The obligations of the Issuer under this
Section to compensate and indemnify the Trustee and to pay or reimburse
the Trustee for expenses and fees, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional
indebtedness shall not be deemed to be Subordinated Securities, as that
term is defined in Section 12.1, and shall be a senior claim to that of
the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Holders
of particular Securities or Coupons, and the Securities are hereby
subordinated to such senior claim. When the Trustee incurs expenses after
the occurrence of a default, the expenses are intended to constitute
expenses of administration under any bankruptcy law.
Section 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE,
ETC. Subject to Sections 6.1 and 6.2, whenever in the administration of
the trusts of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant
to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture in reliance thereon.
Section 6.8 QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS. If
the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act.
Section 6.9 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. There
shall at all times be a Trustee hereunder which shall be a corporation
organized and doing business under the laws of the United States of
America or of any State thereof or the District of Columbia having a
combined capital and surplus of at least $50,000,000, and which is
authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by Federal, State or District of
Columbia authority. Such corporation shall have its principal place of
business in The City of New York, if there be such a corporation in such
location willing to act upon reasonable and customary terms and
conditions. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the
effect specified in Section 6.10.
Section 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign and be discharged of the trusts created
by this Indenture by giving written notice of resignation to the Issuer
and (i) if any Unregistered Securities are then Outstanding, by giving
notice of such resignation to the Holders thereof by publication at least
once in an Authorized Newspaper in the Borough of Manhattan, The City of
New York, (ii) if any Unregistered Securities are then Outstanding, by
mailing notice of such resignation to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 4.4(c)(ii)
at such addresses as were so furnished to the Trustee and (iii) by mailing
notice of such resignation to the Holders of the then Outstanding
Registered Securities at their addresses as they shall appear on the
Security registry books. Upon receiving such notice of resignation, the
Issuer shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument, in duplicate, executed by
authority of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee
or trustees. If no successor trustee shall have been so appointed with
respect to any series and shall have accepted appointment within 30 days
after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder who has been a bona fide Holder of a
Security or Securities of such series for at least six months may, subject
to the provisions of Section 5.12, on behalf of such ▇▇▇▇▇▇ and all others
similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 6.8 after written request therefor by the Issuer or by any
Holder who has been a bona fide Holder of a Security or Securities of such
series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.9 and shall fail to resign after written
request therefor by the Issuer or by any Holder; or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of
the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to
the Securities of any or all series, as appropriate, and appoint a
successor trustee for such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the successor
trustee or trustees, or, subject to the provisions of Section 5.12, any
Holder who has been a bona fide Holder of a Security or Securities of such
series for at least six months may, on behalf of such ▇▇▇▇▇▇ and all
others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities at the time Outstanding may at any time remove the Trustee
and appoint a successor trustee by delivering to the Trustee so removed,
to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Holders.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of
this Section shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 6.11.
(e) Except in the case of a default in the payment of the
principal of or interest on any Security, or in the payment of any sinking
or purchase fund installment, the Trustee shall not be required to resign
as provided by Section 6.8 if the Trustee shall have sustained the burden
of proving, on application to the Commission and after opportunity for
hearing thereon, that:
(i) the default under this Indenture may be cured or
waived during a reasonable period and under the procedures described in
such application; and
(ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of the Securityholders.
Section 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 6.10 shall execute,
acknowledge and deliver to the Issuer and to its predecessor trustee an
instrument accepting such appointment hereunder, 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 rights, powers, trusts and duties of its
predecessor hereunder, with like effect as if originally named as trustee
hereunder; but, nevertheless, on the written request of the Issuer or of
the successor Trustee, upon payment of its charges then unpaid, the
trustee ceasing to act shall, subject to Section 10.4, pay over and
transfer to the successor Trustee all moneys and property at the time held
by it hereunder and shall execute, acknowledge and deliver an instrument
transferring to such successor Trustee all such rights, powers, trusts and
duties. Upon request of any such successor Trustee, the Issuer shall
execute and acknowledge any and all instruments in writing for more fully
and certainly vesting in and confirming to such successor Trustee all such
money, property, rights, powers and trusts. Any Trustee ceasing to act
shall, nevertheless, retain a prior claim upon all property or funds held
or collected by such Trustee for the benefit of such applicable series to
secure any amounts then due it pursuant to the provisions of Section 6.6.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 6.8 and eligible under the
provisions of Section 6.9.
Upon acceptance of appointment by any successor Trustee as provided
in this Section, the Issuer shall give notice thereof (a) if any
Unregistered Securities are then Outstanding, to the Holders thereof by
publication of such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York, (b) if any Unregistered
Securities are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 4.4(c)(ii)
by mailing such notice to such Holders at such addresses as were so
furnished to the Trustee (and the Trustee shall make such information
available to the Issuer for such purpose) and (c) to the Holders of
Registered Securities, by mailing such notice to such Holders at their
addresses as they shall appear on the Security registry books. If the
acceptance of appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 6.10. If the Issuer fails
to give such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be
given at the expense of the Issuer.
Section 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the
provisions of Section 6.8 and eligible under the provisions of
Section 6.9, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
In case at the time of such succession to the Trustee any of the
Securities of any series shall have been authenticated but not delivered,
any such successor Trustee may adopt the certificate of authentication of
any predecessor Trustee and deliver the Securities so authenticated; and,
in case at that time any of the Securities of any series shall not have
been authenticated, any successor Trustee may authenticate such Securities
either in the name of any predecessor hereunder or in the name of such
successor Trustee; and in all such cases such certificate of
authentication shall have the full force which is anywhere in the
Securities of such series or in this Indenture provided that the
certificate of authentication of the Trustee shall have; provided that the
right to adopt the certification of any predecessor Trustee or to
authenticate Securities of any series in the name of any predecessor
Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER.
The Trustee shall comply with its obligations under the applicable
provisions of Section 311 of the Trust Indenture Act.
Section 6.14 APPOINTMENT OF AUTHENTICATING AGENT. As long as any
Securities of a series remain Outstanding, the Trustee may, by an
instrument in writing, appoint with the approval of the Issuer an authen-
ticating agent (the "Authenticating Agent") which shall be authorized to
act on behalf of, but subject to the direction of, the Trustee to
authenticate and deliver Securities of such series, including Securities
issued upon exchange, registration of transfer, partial redemption or
pursuant to Section 2.9. Securities of such series so authenticated and
delivered shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee.
Whenever reference is made in this Indenture to the authentication and
delivery of Securities of any series 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 for such series and a certificate of authentication executed on
behalf of the Trustee by such Authenticating Agent. Such Authenticating
Agent shall at all times be a corporation organized and doing business
under the laws of the United States of America or of any State thereof or
of the District of Columbia authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 (determined as provided in Section 6.9 with respect to the
Trustee) and subject to supervision or examination by Federal or State
authority.
Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust business of any Authenticating
Agent, shall be the successor to such Authenticating Agent with respect to
all series of Securities for which it served as 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, and if it shall cease to
be eligible hereunder shall, resign by giving written notice of
resignation to the Trustee and to the Issuer. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice
thereof to such Authenticating Agent and the Issuer. Upon receiving such
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, the Trustee shall upon receipt of an Issuer
Order appoint a successor Authenticating Agent and shall provide notice of
such appointment to all Holders of Securities affected thereby in the
manner and to the extent provided in Section 6.11 with respect to the
appointment of a successor trustee. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all
rights, powers and duties of its predecessor hereunder, with like effect
as if originally named as an Authenticating Agent. The Authenticating
Agent for the Securities of any series shall have no responsibility or
liability for any action taken by it as such at the direction of the
Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
Section 7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any
request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by a
specified percentage in aggregate principal amount of the Holders of one
or more series of Securities may be evidenced (i) by one or more
instruments of substantially similar tenor signed by such specified
percentage of Holders in person or by an agent or proxy duly appointed in
writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered
to the Trustee; (ii) by the record of such specified percentage of Holders
voting in favor thereof at any meeting of such Holders duly called and
held by the Trustee; and (iii) by a combination of such instrument or
instruments and any such record of a meeting.
Section 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Holder or his agent or proxy and proof of the holding by
any Person of any of the Securities of any series shall be sufficient if
made in the following manner:
(a) The fact and date of the execution by any such Person of
any instrument may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of
deeds or administer oaths that the Person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness
to such execution sworn to before any such notary or other such officer.
Where such execution is by or on behalf of any legal entity other than an
individual, such certificate or affidavit shall also constitute sufficient
proof of the authority of the Person executing the same. The ownership of
an Unregistered Security of any series, or of any Coupon attached thereto
at its issuance, and the identifying number of such Security and the date
of such ownership, may be proved by the production of such Security or
Coupon or by a certificate executed by any trust company, bank, banker or
recognized securities dealer, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory. Each such certificate shall
be dated and shall state that on the date thereof a Security of such
series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities
dealer by the person named in such certificate. Any such certificate may
be issued in respect of one or more Unregistered Securities of one or more
series specified therein. The ownership by the Person named in any such
certificate of any Unregistered Security specified therein shall be
presumed to continue unless at the time of any determination of such
ownership and holding (1) another certificate bearing a later date issued
in respect of such Security shall be produced, (2) such Security shall be
produced by some other Person or (3) such Security shall have ceased to be
Outstanding. Subject to Sections 6.1 and 6.2, the fact and date of the
execution of any such instrument and the ownership, amount and numbers of
any Unregistered Securities may also be proven in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee for
any series or in any other manner which the Trustee may deem sufficient.
(b) In the case of Registered Securities, the ownership of
such Securities shall be proved by the Security Register or by a
certificate of the Security Registrar.
Section 7.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security of any series shall be registered upon
the Security Register for such series as the absolute owner of such
Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for
the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of Section 2.7 of this Indenture, interest, if
any, on such Security and for all other purposes; and none of the Issuer,
the Trustee and any agent of the Issuer or the Trustee shall be affected
by any notice to the contrary. The Issuer, the Trustee and any agent of
the Issuer or the Trustee may treat the Holder of any Unregistered
Security and the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered Security
or Coupon shall be overdue) for the purpose of receiving payment thereof
or on account thereof and for all other purposes; and none of the Issuer,
the Trustee and any agent of the Issuer or the Trustee shall be affected
by any notice to the contrary. All such payments so made to any such
Person, or upon his order, shall be valid, and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Security or Coupon.
No holder of any beneficial interest in any Registered Global
Security held on its behalf by a Depository shall have any rights under
this Indenture with respect to such Registered Global Security, and such
Depository may be treated by the Issuer, the Trustee, and any agent of the
Issuer or the Trustee as the owner of such Registered Global Security for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall impair, as between a Depository and such holders of beneficial
interests, the operation of customary practices governing the exercise of
the rights of the Depository as holder of any Security.
Section 7.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING. In
determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of one or more series have concurred in
any direction, consent or waiver under this Indenture, Securities which
are owned by the Issuer or any other obligor on the Securities with
respect to which such determination is being made or by any Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purposes of any such
determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or
waiver, only Securities which the Trustee knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Issuer or any other
obligor upon such Securities or any Person directly or indirectly
controlling or controlled by or under direct or indirect common control
with the Issuer or any other obligor on such Securities. In case of a
dispute as to such right, the advice of counsel shall be full protection
in respect of any decision made by the Trustee in accordance with such
advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above described Persons; and, subject to Sections
6.1 and 6.2, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of
the fact that all Securities not listed therein are Outstanding for the
purposes of any such determination.
Section 7.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time
prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.1, of the taking of any action by the Holders of the requisite
percentage in aggregate principal amount of the Securities of one or more
series, as the case may be, specified in this Indenture in connection with
such action, any Holder of a Security the serial number of which is shown
by the evidence to be included among the serial numbers of the Securities
the Holders of which have consented to such action may, by filing written
notice at the Corporate Trust Office and upon proof of ownership as
provided in Section 7.2, revoke such action so far as concerns such
Security. Except as aforesaid, any such action taken by the Holder of any
Security of any series shall be conclusive and binding upon such Holder
and upon all future Holders and owners of such Security and of any
Securities of such series issued in exchange or substitution therefor or
on registration of transfer thereof, irrespective of whether or not any
notation in regard thereto is made upon any such Security. Any action
taken by the Holders of the requisite percentage in aggregate principal
amount of the Securities of one or more series, as the case may be,
specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all
the Securities of such series.
Section 7.6 CALCULATION OF ORIGINAL DISCOUNT. Promptly after the
end of each calendar year the Company shall furnish the Trustee with an
Officers' Certificate specifying with respect to any Securities and such
calendar year (a) the "daily portions" for each "accrual period" within
the meaning of the Internal Revenue Code of 1986, as amended from time to
time (the "Code") for purposes of calculating and reporting the original
issued discount, or such other specific information as may then be
relevant under the Code, and (b) such specific information with respect to
any payments, including the characterization thereof under the Code, as
the Trustee may request in writing.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Issuer, when authorized by a resolution of the Board
of Directors (which resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the
Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of
the Trust Indenture Act of 1939 as in force at the date of the execution
thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any property
or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Nine;
(c) to add to the covenants of the Issuer for the benefit of
the Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) such further covenants, restrictions, conditions or provisions as
the Issuer and the Trustee shall consider to be for the protection of the
Holders of Securities of any series or Coupons appertaining thereto, and
to make the occurrence, or the occurrence and continuance, of a default in
complying with any such additional covenant, restriction, condition or
provision an Event of Default permitting the enforcement of all or any of
the several remedies provided in this Indenture as herein set forth; in
respect of any such additional covenant, restriction, condition or
provision, 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 an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit the
right of the Holders of a majority in aggregate principal amount of the
Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in
any supplemental indenture, or to make such other provisions as the Issuer
may deem necessary or desirable, with respect to matters or questions
arising under this Indenture, provided that no such action shall adversely
affect the interests of the Holders of the Securities of any series or the
Coupons appertaining thereto;
(e) to establish the form and terms of the Securities of any
series or of the Coupons appertaining to such Securities, as permitted by
Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities and to add
to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by
more than one trustee, all as provided in Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and
to accept the conveyance, transfer, assignment, mortgage or pledge of any
property or assets thereunder, but the Trustee shall not be obligated to
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions
of Section 8.2.
Section 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS. With the consent (evidenced as provided in Article
Seven) of the Holders of not less than a majority in aggregate principal
amount of the Securities of all series at the time Outstanding affected by
such supplemental indenture (voting as one class), the Issuer, when
authorized by a resolution of the Board of Directors (which resolution may
provide general terms or parameters for such action and may provide that
the specific terms of such action may be determined in accordance with or
pursuant to an Issuer Order), and the Trustee may, from time to time and
at any time, enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of execution thereof) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of
each such series or of the Coupons appertaining to such Securities;
provided that no such supplemental indenture shall (a) change the time of
payment of the principal, or any installment of the principal, of any
Security or reduce the principal amount thereof, or reduce the rate or
change the time of payment of interest, if any, thereon, or reduce any
amount payable on the redemption thereof, or make the principal thereof or
the interest thereon payable in any coin or currency other than that
provided in such Security and the Coupons, if any, appertaining thereto or
in accordance with the terms thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the Maturity thereof pursuant to
Section 5.1 or the amount thereof provable in bankruptcy, pursuant to
Section 5.2, or impair or affect the right to institute suit for the
payment thereof when due, or, if such Security shall so provide, any right
of repayment at the option of the Holder, in each case without the consent
of the Holder of each Security so affected, (b) reduce the percentage in
principal amount of the Outstanding Securities of the affected series, the
consent of whose Holders is required for any such supplemental indenture
or for any waiver provided for in this Indenture, without the consent of
the Holders of each Security so affected or (c) without the consent of the
Holders of each Security so affected, modify any of the provisions of this
Section or Section 5.10, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the requirements of
Sections 6.11 and 8.1(f).
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included
solely for the benefit of one or more series of Securities, or which
modifies the rights of the Holders of Securities of such series or of the
Coupons appertaining to such Securities with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture
of the Holders of Securities of any other series or of the Coupons
pertaining to such Securities.
Upon the request of the Issuer, accompanied by a Board Resolution
complying with the first paragraph of this Section and evidence of the
consent of the Holders of the Securities as aforesaid and such other
documents, if any, as may be required by Section 7.1, the Trustee shall
join with the Issuer 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 Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (i) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they
shall appear on the Security Register, (ii) if any Unregistered Securities
of a series affected thereby are then Outstanding, to the Holders thereof
who have filed their names and addresses with the Trustee pursuant to
Section 4.4(c)(ii), by mailing a notice thereof by first-class mail to
such Holders at such addresses as were so furnished to the Trustee and
(iii) if any Unregistered Securities of a series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice thereof at
least once in an Authorized Newspaper in the Borough of Manhattan, The
City of New York, and in each case such notice shall set forth in general
terms the substance of such supplemental indenture. Any failure of the
Issuer to give such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
Section 8.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer and
the Holders of Securities of each series affected thereby shall thereafter
be determined, exercised and enforced hereunder subject in all respects to
such modifications and amendments, and all the terms and conditions of any
such supplemental indenture shall be and be deemed to be part of the terms
and conditions of this Indenture for any and all purposes.
Section 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant to this Article complies
with the applicable provisions of this Indenture.
Section 8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to the provisions of
this Article may bear a notation in form approved by the Trustee as to any
matter provided for by such supplemental indenture. If the Issuer or the
Trustee shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental
indenture may be prepared and executed by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 COVENANT OF ISSUER NOT TO MERGE, CONSOLIDATE, SELL OR
CONVEY PROPERTY EXCEPT UNDER CERTAIN CONDITIONS. Nothing contained in
this Indenture or in any of the Securities shall prevent any consolidation
of the Issuer with, or merger of the Issuer into, any other corporation or
corporations (whether or not affiliated with the Issuer), or successive
consolidations or mergers to which the Issuer or its successor or
successors shall be a party or parties, shall prevent any sale, lease or
conveyance of the property of the Issuer as an entirety or substantially
as an entirety, shall prevent any consolidation of any Person with, or the
merger of any Person into, the Issuer or shall prevent any sale, lease or
conveyance of the property of any Person as an entirety or substantially
as an entirety to the Issuer; provided, that, and the Issuer hereby
covenants and agrees, upon any such consolidation, merger, sale, lease or
conveyance, the due and punctual payment of the principal of and interest,
if any, on all the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed or observed by the Issuer, shall be
expressly assumed, by supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee by the corporation formed
by such consolidation, or into which the Issuer shall have been merged, or
which shall have acquired such property; provided, further, that the
corporation formed by such consolidation or into which the Issuer merged
or the Person which acquired by conveyance or sale, or which leases, the
properties and assets of the Issuer as an entirety or substantially as an
entirety shall be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of
Columbia; provided, further, that immediately after giving effect to such
transaction, and treating any indebtedness which becomes an obligation of
the Issuer or a Subsidiary as a result of such transaction as having been
incurred by the Issuer or such Subsidiary at the time of 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; provided, further, if, as a result of any such consolidation
or merger or such conveyance, transfer or lease, properties or assets of
the Issuer would become subject to a mortgage, pledge, lien, security
interest or other encumbrance which would not be permitted by this
Indenture, the Issuer or such successor corporation or Person, as the case
may be, shall take such steps as shall be necessary effectively to secure
the Securities equally and ratably with (or prior to) all indebtedness
secured thereby.
Section 9.2 SUCCESSOR CORPORATION SUBSTITUTED FOR ISSUER. In case
of any consolidation, merger, sale, lease or conveyance referred to in,
and in accordance with, Section 9.1, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and
be substituted for the Issuer, with the same effect as if it had been
named herein as Issuer.
Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such
succession, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Issuer, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the
officers of the Issuer to the Trustee for authentication, and any
Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the
Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or thereafter
issued in accordance with the terms of this indenture as though all of
such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phraseology and form (but not in substance) may
be made in the Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease), the Issuer or any successor corporation which
shall theretofore have become such in the manner described in this Article
shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be liquidated and dissolved.
Section 9.3 OPINION OF COUNSEL DELIVERED TO TRUSTEE. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Opinion
of Counsel as conclusive evidence that any such consolidation, merger,
sale, lease or conveyance, and any such assumption, and any such
liquidation or dissolution, complies with the applicable provisions of
this Indenture and that all conditions precedent herein provided for
relating to such transactions have been complied with.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 10.1 SATISFACTION AND DISCHARGE OF INDENTURE. (A) If at
any time (a) the Issuer shall have paid or caused to be paid the principal
of and interest, if any, on all the Securities of each series theretofore
authenticated, including all Coupons appertaining thereto (other than
Securities and Coupons appertaining thereto which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 2.9), in accordance with the terms of this Indenture and such
Securities or (b) as to Securities and Coupons not so paid, the Issuer
shall have delivered to the Trustee for cancellation all Securities of
each series theretofore authenticated and all Coupons appertaining thereto
(other than any Securities and Coupons appertaining thereto which shall
have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.9) or (c) as to Securities and Coupons not
so paid or delivered for cancellation, in the case of any series of
Securities as to which the exact amount of principal of and interest, if
any, due can be determined at the time of making the deposit referred to
in clause (ii) below, (i) all the Securities of such series and all
Coupons appertaining thereto shall have become due and payable, or are by
their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and (ii) the Issuer shall
have irrevocably deposited or caused to be deposited with the Trustee as
trust funds money in an amount (other than moneys repaid by the Trustee or
any paying agent to the Issuer in accordance with Section 10.4) or
Government Obligations, maturing as to principal and interest at such
times and in such amounts as will insure the availability of money, or a
combination thereof, sufficient in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal
and interest, if any, on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest, if any,
is due and payable and (B) any mandatory sinking fund or analogous
payments on the dates on which such payments are due and payable in
accordance with the terms of this Indenture and the Securities of such
series; and if, in any such case, the Issuer shall also pay or cause to be
paid all other sums payable hereunder by the Issuer then this Indenture
shall cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities and of Coupons
appertaining thereto and the Issuer's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (iii) the rights of Holders of Securities and
Coupons appertaining thereto to receive payments of principal thereof and
interest, if any, thereon, upon the original stated due dates therefor or
any date of redemption (but not upon acceleration), and remaining rights
of such Holders to receive mandatory sinking fund or analogous payments,
if any, (iv) the rights, obligations, duties and immunities of the Trustee
hereunder, (v) the rights of Holders of Securities and Coupons
appertaining thereto as beneficiaries hereof with respect to the property
so deposited with the Trustee and payable to all or any of them and
(vi) the obligations of the Issuer under Section 3.2) and the Trustee, on
demand of the Issuer accompanied by an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with, and at the cost and expense of the Issuer, shall
execute proper instruments acknowledging such satisfaction and discharge
of this Indenture, provided that the rights of Holders of the Securities
and Coupons to receive amounts in respect of principal of and interest on
the Securities and Coupons held by them shall not be delayed longer than
required by then applicable mandatory rules or policies of any national
securities exchange upon which the Securities are listed. The Issuer
agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any
services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities.
(B) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in the Board
Resolution, Officers' Certificate or supplemental indenture relating
thereto provided pursuant to Section 2.3. In addition to discharge of
this Indenture pursuant to the next preceding paragraph (A), in the case
of any series of Securities as to which the exact amount of principal of
and interest, if any, due can be determined at the time of making the
deposit referred to in subparagraph (a) below, the Issuer shall be deemed
to have paid and discharged the entire indebtedness on all the Securities
of such series and the Coupons appertaining thereto on the 91st day after
the date of such deposit, and the provisions of this Indenture with
respect to the Securities of such series and Coupons appertaining thereto
shall no longer be in effect (except as to (i) rights of registration of
transfer and exchange of Securities of such series and of Coupons
appertaining thereto and the Issuer's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (iii) the rights of Holders of Securities of such
series and Coupons appertaining thereto to receive payments of principal
thereof and interest, if any, thereon, upon the original stated due dates
therefor or any date of redemption (but not upon acceleration), and
remaining rights of such Holders to receive mandatory sinking fund or
analogous payments, if any, solely from the trust fund referred to in sub-
paragraph (a) below, (iv) the rights, obligations, duties and immunities
of the Trustee hereunder, (v) the rights of Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof with
respect to the property so deposited with the Trustee and payable to all
or any of them and (vi) the obligations of the Issuer under Section 3.2),
and the Trustee, at the cost and expense of the Issuer, shall, at the
Issuer's request, execute proper instruments acknowledging the same, if:
(a) the Issuer shall have irrevocably deposited or caused
to be irrevocably deposited with the Trustee as a trust fund specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series and Coupons appertaining thereto
(i) money in an amount, or (ii) Government Obligations, maturing as to
principal and interest at such times and in such amounts as will insure
the availability of money, or (iii) a combination thereof, sufficient in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest, if any, on all Securities
of such series and Coupons appertaining thereto on each date that such
principal or interest, if any, is due and payable and (B) any mandatory
sinking fund or analogous payments on the dates on which such payments are
due and payable in accordance with the terms of this Indenture and the
Securities of such series;
(b) no Event of Default or event which, with notice or
lapse of time or both, would become an Event of Default with respect to
the Securities of such series shall have occurred and be continuing on the
date of such deposit or at any time during the period ending on the 91st
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period);
(c) such deposit shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Issuer is a party or by
which it is bound;
(d) such deposit shall not cause any Securities of such
series then listed on any national securities exchange registered under
the Securities Exchange Act of 1934, as amended, to be delisted;
(e) the Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect that (i) if such deposits shall include
Government Obligations in respect of any government other than the United
States of America, such deposit shall not result in the Issuer, the
Trustee or such trust constituting an "investment company" under the
Investment Company Act of 1940, as amended, and (ii) (x) the Issuer has
received from, or there has been published by, the Internal Revenue Serv-
ice a ruling or (y) since the date of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the
effect that, and such opinion shall confirm that, the Holders of the
Securities of such series then Outstanding and Coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit, defeasance and discharge and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such deposit, defeasance
and discharge had not occurred; and
(f) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this paragraph have been complied with.
(C) The Issuer shall be released from its obligations under
Article Three and Article Nine with respect to the Securities of a
particular series and any Coupons appertaining thereto Outstanding on and
after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"). Covenant defeasance means that, with respect to
the Outstanding Securities of such series, the Issuer may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in Article Nine, whether directly or indirectly by
reason of any reference elsewhere herein to such Article by reason of any
reference in such Article to any other provision herein or by reason of
any reference to such Article in any other document, and such omission to
comply shall not constitute an Event of Default under Section 5.1 with
respect to the Outstanding Securities of such series, but the remainder of
this Indenture and other Outstanding Securities and Coupons shall be
unaffected thereby. The following shall be the conditions to application
of this paragraph (C):
(a) the Issuer shall have irrevocably deposited or caused
to be irrevocably deposited with the Trustee as a trust fund specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series and Coupons appertaining thereto,
(i) money in an amount, or (ii) Government Obligations, maturing as to
principal and interest at such times and in such amounts as will insure
the availability of money, or (iii) a combination thereof, sufficient in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest, if any, on all Securities
of such series and Coupons appertaining thereto on each date that such
principal or interest, if any, is due and payable and (B) any mandatory
sinking fund or analogous payments on the dates on which such payments are
due and payable in accordance with the terms of this Indenture and the
Securities of such series;
(b) no Event of Default or event which, with notice or
lapse of time or both, would become an Event of Default with respect to
the Securities of such series shall have occurred and be continuing on the
date of such deposit or at any time during the period ending on the 91st
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period);
(c) such covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Issuer is a party or
by which it is bound;
(d) such covenant defeasance shall not cause any
Securities of such series then listed on any national securities exchange
registered under the Securities Exchange Act of 1934, as amended, to be
delisted;
(e) the Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect that (i) if such deposits shall include
Government Obligations in respect of any government other than the United
States of America, such deposit shall not result in the Issuer, the
Trustee or such trust constituting an "investment company" under the
Investment Company Act of 1940, as amended, and (ii) the Holders of the
Securities of such series then Outstanding and Coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; and
(f) the Issuer 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 such covenant
defeasance have been complied with.
Section 10.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT
OF SECURITIES. Subject to Section 10.4, all moneys or Government
Obligations deposited with the Trustee (or other trustee), and all money
received by the Trustee in respect of Government Obligations deposited
with the Trustee, pursuant to Section 10.1 in respect of the Outstanding
Securities of a particular series and the Coupons appertaining thereto
shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Issuer acting as its own paying
agent), to the Holders of such Securities and Coupons of all sums due and
to become due thereon for principal and interest, if any; but such money
need not be segregated from other funds except to the extent required by
law.
Section 10.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with
respect to the Securities of any series, all moneys then held by any
paying agent under the provisions of this Indenture with respect to such
series of Securities shall, upon demand of the Issuer, 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 moneys.
Section 10.4 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT
UNCLAIMED FOR THREE YEARS. Any moneys deposited with or paid to the
Trustee or any paying agent for the payment of the principal of or
interest, if any, on any Security of any series or Coupons appertaining
thereto and not applied but remaining unclaimed for three years after the
date upon which such principal or interest shall have become due and
payable, shall, upon the written request of the Issuer and unless
otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee or such paying agent, and any Holder of the Securities of such
series and of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for any
payment which such Holder may be entitled to collect, and all liability of
the Trustee or any paying agent with respect to such moneys shall
thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment with respect to moneys
deposited with it for any payment (a) in respect of Registered Securities
of any series, shall at the expense of the Issuer, mail by first-class
mail to Holders of such Securities at their addresses as they shall appear
on the Security Register for the Securities of such series, and (b) in
respect of Unregistered Securities of any series, shall at the expense of
the Issuer cause to be published once, in an Authorized Newspaper in the
Borough of Manhattan, The City of New York, notice that such moneys remain
and that, after a date specified therein, which shall not be less than 30
days from the date of such mailing or publication, any unclaimed balance
of such moneys then remaining will be repaid to the Issuer.
Section 10.5 INDEMNITY FOR GOVERNMENT OBLIGATIONS. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the Government Obligations deposited
pursuant to Section 10.1 or the principal or interest received in respect
of such Government Obligations, other than any such tax, fee or other
charge which by law is for the account of the Holders of the Securities
and Coupons for whose benefit such Government Obligations are held.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.1 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any Securities of a series which
have the benefit of a sinking fund, except as otherwise specified as
contemplated by Section 2.3 for Securities of any series.
Section 11.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not
more than 60 days prior to the date fixed for redemption, to such Holders
at their last addresses as they shall appear upon the registry books for
such Securities. Notice of redemption to the Holders of Unregistered
Securities of any series to be redeemed as a whole or in part, who have
filed their names and addresses with the Trustee pursuant to
Section 4.4(c)(ii), shall be given by mailing notice of such redemption by
first class mail, postage prepaid, at least 30 days and not more than 60
days prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any
such notice given by the Issuer, the Trustee shall make such information
available to the Issuer for such purpose). Notice of redemption to all
other Holders of Unregistered Securities of any series shall be published
in an Authorized Newspaper in the Borough of Manhattan, The City of
New York, in each case once in each of three successive calendar weeks,
the first publication to be not less than 30 days nor more than 60 days
prior to the date fixed for redemption. Any notice which is mailed in the
manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice to the Holder of any Security
of any series designated for redemption as a whole or in part, shall not
affect the validity of the proceedings for the redemption of any other
Security of such series.
The notice of redemption to each such Holder shall specify (a) the
principal amount of each Security of such series held by such Holder to be
redeemed, (b) the date fixed for redemption, (c) the redemption price, (d)
if applicable, the current conversion price or rate, (e) if applicable,
the name and address of the Conversion Agent, (f) if applicable, that the
right of the Holder to convert Securities called for redemption shall
terminate at the close of business on the fifteenth day prior to the
redemption date (or such other day as may be specified as contemplated by
Section 2.3 for Securities of any series), (g) if applicable, that Holders
who elect to convert Securities called for redemption must satisfy the
requirements for conversion contained in such Securities, (h) the place or
places of payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Securities with Coupons
attached thereto, of all Coupons appertaining thereto maturing after the
date fixed for redemption, (i) that such redemption is pursuant to the
mandatory or optional sinking or other analogous fund, or both, if such be
the case, (j) that interest accrued to the date fixed for redemption will
be paid as specified in such notice, (k) that on and after said date
interest thereon or on the portions thereof to be redeemed will cease to
accrue and (l) the CUSIP number. In case any Security is to be redeemed
in part only, the notice of redemption shall state the identification
numbers, the portion of the principal amount thereof to be redeemed and
shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series in
authorized denominations for an aggregate principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed
at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the
Issuer.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with
the Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.4) an amount of money sufficient to redeem on the
redemption date all the Securities of any series so called for redemption
at the applicable redemption price, together with accrued interest to the
date fixed for redemption. The Issuer will deliver to the Trustee at
least 60 days prior to the date fixed for redemption an Officers'
Certificate stating such date, the aggregate principal amount of
Securities of each series to be redeemed and that no Events of Default
with respect to the Securities of such series have occurred (which have
not been waived or cured). In case of a redemption at the option of the
Issuer prior to the expiration of any restriction on such redemption, the
Issuer shall deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officers' Certificate
stating that such restriction has been complied with. If less than all
the Securities of any series are to be redeemed, the Trustee shall select,
in such manner as it shall deem appropriate and fair, Securities of such
series to be redeemed in whole or in part. Securities may be redeemed in
part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall
promptly notify the Issuer in writing of the Securities of such series
selected for redemption and, in the case of any Securities of such series
selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities of any series shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the principal
amount of such Security which has been or is to be redeemed.
Section 11.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If
notice of redemption has been given as provided in Section 11.2, the
Securities or portions of Securities specified in such notice shall become
due and payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the Issuer shall
default in the payment of such Securities at the applicable redemption
price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease
to accrue, the unmatured Coupons, if any, appertaining thereto shall be
void and, except as provided in Sections 6.5 and 10.4, such Securities
shall cease from and after the date fixed for redemption to be entitled to
any benefit or security under this Indenture, and the Holders thereof
shall have no right in respect of such Securities except the right to
receive the applicable redemption price thereof and unpaid interest to the
date fixed for redemption and the right to convert such Securities, if
such Securities are convertible. On presentation and surrender of such
Securities at a place of payment specified in said notice, together with
all Coupons, if any, appertaining thereto maturing after the date fixed
for redemption, such Securities or the specified portions thereof shall be
paid and redeemed by the Issuer at the applicable redemption price,
together with interest accrued thereon to the date fixed for redemption;
provided that payment of interest becoming due on or prior to the date
fixed for redemption shall be payable, in the case of Securities with
Coupons attached thereto, to the Holders of the Coupons for such interest
upon surrender thereof or, in the case of Registered Securities, to the
Holders of such Registered Securities registered as such on the relevant
Record Date, subject to the terms and provisions of Sections 2.3 and 2.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate
of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing
after the date fixed for redemption, the surrender of such missing Coupon
or Coupons may be waived by the Issuer and the Trustee, if there be
furnished to each of them such security or indemnity as they may require
to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Issuer, a new Security
or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
Section 11.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in an Officers' Certificate delivered to the Trustee at
least 60 days prior to the last date on which notice of redemption may be
given as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such Officers' Certificate as an Affiliate of the Issuer.
Section 11.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum
amount of any sinking fund payment provided for by the terms of the
Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided
for by the terms of the Securities of any series is herein referred to as
an "optional sinking fund payment". The date on which a sinking fund
payment is to be made is herein referred to as the "sinking fund payment
date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may
at its option (a) deliver to the Trustee Securities of such series
theretofore purchased or otherwise acquired (except upon redemption
pursuant to the mandatory sinking fund) by the Issuer or receive credit
for Securities of such series (not previously so credited) theretofore
purchased or otherwise acquired (except as aforesaid) by the Issuer and
delivered to the Trustee for cancellation pursuant to Section 2.10, (b)
receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the
Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officers'
Certificate (which need not contain the statements required by Section
14.5) (a) specifying the portion of the mandatory sinking fund payment due
on such date to be satisfied by payment of cash and the portion to be
satisfied by credit of Securities of such series and the basis for such
credit, (b) stating that none of the Securities of such series to be so
credited has theretofore been so credited, (c) stating that no defaults in
the payment of interest or Events of Default with respect to such series
have occurred and are continuing (which have not been waived or cured) and
(d) stating whether or not the Issuer intends to exercise its right to
make an optional sinking fund payment on such date with respect to such
series and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be so
credited and required to be delivered to the Trustee in order for the
Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such Officers'
Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers' Certificate shall be irrevocable, and upon its
receipt by the Trustee the Issuer shall become unconditionally obligated
to make all the cash payments or other deliveries therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure
of the Issuer, on or before any such 60th day, to deliver such Officers'
Certificate and securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such 60th day, the
irrevocable election of the Issuer that (i) the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof and (ii) the Issuer
will make no optional sinking fund payment with respect to such series on
such date as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in
cash shall exceed $50,000 and if the Issuer shall so request with respect
to the Securities of any particular series, such cash shall be applied on
the next succeeding sinking fund payment date to the redemption of
Securities of such series at the applicable sinking fund redemption price,
together with accrued interest to the date fixed for redemption. If such
amount shall be $50,000 or less and the Issuer makes no such request, then
such amount shall be carried over until a sum in excess of $50,000 is
available. The Trustee shall select, in the manner provided in Section
11.2, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Issuer) inform
the Issuer of the serial numbers of the Securities of such series (or
portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered
to the Trustee at least 40 days prior to the sinking fund payment date as
being owned of record and beneficially by, and not pledged or hypothecated
by either (a) the Issuer or (b) an entity specifically identified in such
Officers' Certificate as an Affiliate of the Issuer. The Trustee, in the
name and at the expense of the Issuer (or the Issuer, if it shall so
request the Trustee in writing), shall cause notice of redemption of the
Securities of such series to be given in substantially the manner provided
in Section 11.2 (and with the effect provided in Section 11.3) for the
redemption of Securities of such series in part at the option of the
Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to
the next cash sinking fund payment for such series and, together with such
payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date
of the Securities of a particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of
particular Securities of such series, shall be applied, together with
other moneys, if necessary, sufficient for the purpose, to the payment of
the principal of and interest on the Securities of such series at
maturity.
Unless otherwise provided for, on or before each sinking fund
payment date, the Issuer shall pay to the Trustee in cash or shall
otherwise provide for the payment of all interest accrued to the date
fixed for redemption on Securities to be redeemed on such sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed Securities of
any series with sinking fund moneys or give any notice of redemption of
Securities of such series by operation of the sinking fund for such series
during the continuance of any Event of Default with respect to such series
except that, if notice of redemption of any Securities of such series
shall theretofore have been given, the Trustee shall redeem or cause to be
redeemed such Securities, provided that the Trustee or one or more paying
agents shall have received from the Issuer a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such Event of Default shall occur, and any
moneys thereafter paid into the sinking fund, shall, during the
continuance of such Event of Default, be deemed to have been collected
under Article Five and held for the payment of all Securities of such
series. In case such Event of Default shall have been waived as provided
in Section 5.10 or such Event of Default cured on or before the 60th day
preceding any sinking fund payment date, such moneys shall thereafter be
applied on the next succeeding sinking fund payment date in accordance
with this Section to the redemption of Securities of such series.
Section 11.6 CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In
connection with any redemption of Convertible Securities of any series
which are convertible into Common Stock, the Issuer may arrange for the
purchase and conversion of any such Securities called for redemption by an
agreement with one or more investment bankers or other purchasers to
purchase such Securities by paying to the Trustee in trust for the Holders
of such Securities, on or before the close of business on the redemption
date, an amount in cash not less than the redemption price, together with
interest, if any, accrued to the redemption date, of such Securities.
Notwithstanding anything to the contrary contained in this Article Eleven,
the obligation of the Issuer to pay the redemption price of such
Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any such Securities not
duly surrendered for conversion by the Holders thereof may, at the option
of the Issuer, be deemed, to the fullest extent permitted by law, acquired
by such purchasers from such Holders and (notwithstanding anything to the
contrary contained in Article Thirteen) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the
last day on which Securities of such series called for redemption may be
converted in accordance with this Indenture and the terms of such
Securities, subject to payment of the above amount as aforesaid. The
Trustee shall hold and pay to the Holders whose Securities are selected
for redemption any such amount paid to it in the same manner as it would
moneys deposited with it by the Issuer for the redemption of Securities.
Without the Trustee's prior written consent, no arrangement between the
Issuer and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this
Indenture, and the Issuer agrees to indemnify the Trustee from, and hold
it harmless against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purchase and conversion of
any Securities between the Issuer and such purchasers, including the costs
and expenses incurred by the Trustee in the defense of any claim or
liability arising out of or in connection with the exercise or performance
of any of its powers, duties, responsibilities or obligations under this
Indenture.
ARTICLE TWELVE
SUBORDINATION
Section 12.1 APPLICABILITY OF ARTICLE; SECURITIES SUBORDINATED TO
SENIOR INDEBTEDNESS. (a) This Article Twelve shall apply only to the
Securities of any series which, pursuant to Section 2.3, are expressly
made subject to this Article. Such Securities are referred to in this
Article Twelve as "Subordinated Securities."
(b) The Issuer covenants and agrees, and each Holder of
Subordinated Securities by his acceptance thereof likewise covenants and
agrees, that the indebtedness represented by the Subordinated Securities
and the payment of the principal and interest, if any, on the Subordinated
Securities is subordinated and subject in right, to the extent and in the
manner provided in this Article, to the prior payment in full of all
Senior Indebtedness.
"Senior Indebtedness" means the principal of and premium, if any,
and interest on the following, whether outstanding on the date hereof or
thereafter incurred, created or assumed: (i) indebtedness of the Issuer
for money borrowed by the Issuer (including purchase money obligations, or
evidenced by debentures (other than the Subordinated Securities), notes,
bankers' acceptances or other corporate debt securities, or similar
instruments issued by the Issuer; (ii) obligations with respect to letters
of credit; (iii) all indebtedness of others of the type referred to in the
preceding clauses (i) and (ii) assumed by or guaranteed in any manner by
the Issuer or in effect guaranteed by the Issuer; or (iv) renewals,
extensions or refundings of any of the indebtedness referred to in the
preceding clauses (i), (ii) and (iii) unless, in the case of any
particular indebtedness, renewal, extension or refunding, under the
express provisions of the instrument creating or evidencing the same or
the assumption or guarantee of the same, or pursuant to which the same is
outstanding, such indebtedness or such renewal, extension or refunding
thereof is not superior in right of payment to the Subordinated
Securities.
Section 12.2 ISSUER NOT TO MAKE PAYMENTS WITH RESPECT TO
SUBORDINATED SECURITIES IN CERTAIN CIRCUMSTANCES. (a) Upon the maturity
of any Senior Indebtedness by lapse of time, acceleration or otherwise,
all principal thereof and premium, if any, and interest thereon shall
first be paid in full, or such payment duly provided for in cash in a
manner satisfactory to the holders of such Senior Indebtedness, before any
payment is made on account of the principal of or interest on
Subordinated Securities or to acquire any Subordinated Securities or on
account of any sinking fund provisions of any Subordinated Securities
(except payments made in capital stock of the Issuer or in warrants,
rights or options to purchase or acquire capital stock of the Issuer,
sinking fund payments made in Subordinated Securities acquired by the
Issuer before the maturity of such Senior Indebtedness, and payments made
through the exchange of other debt obligations of the Issuer for such
Subordinated Securities in accordance with the terms of such Subordinated
Securities, provided that such debt obligations are subordinated to Senior
Indebtedness at least to the extent that the Subordinated Securities for
which they are exchanged are so subordinated pursuant to this Article
Twelve).
(b) Upon the happening and during the continuation of any
default in payment of the principal of and premium, if any, or interest on
any Senior Indebtedness when the same becomes due and payable or in the
event any judicial proceeding shall be pending with respect to any such
default, then, unless and until such default shall have been cured or
waived or shall have ceased to exist, no payment shall be made by the
Issuer with respect to the principal of or interest on Subordinated
Securities or to acquire any Subordinated Securities or on account of any
sinking fund provisions of Subordinated Securities (except payments made
in capital stock of the Issuer or in warrants, rights, or options to
purchase or acquire capital stock of the Issuer, sinking fund payments
made in Subordinated Securities acquired by the Issuer before such default
and notice thereof, and payments made through the exchange of other debt
obligations of the Issuer for such Subordinated Securities in accordance
with the terms of such Subordinated Securities, provided that such debt
obligations are subordinated to Senior Indebtedness at least to the extent
that the Subordinated Securities for which they are exchanged are so
subordinated pursuant to this Article Twelve).
(c) In the event that, notwithstanding the provisions of this
Section 12.2, the Issuer shall make any payment to the Trustee on account
of the principal of or interest on Subordinated Securities, or on account
of any sinking fund provisions of such Securities, after the maturity of
any Senior Indebtedness as described in Section 12.2(a) above or after the
happening of a default in payment of the principal of and premium, if any,
or interest on any Senior Indebtedness as described in Section 12.2(b)
above, then, unless and until all Senior Indebtedness which shall have
matured, and all interest thereon, shall have been paid in full (or the
declaration of acceleration thereof shall have been rescinded or
annulled), or such default shall have been cured or waived or shall have
ceased to exist, such payment (subject to the provisions of Sections 12.6
and 12.7) shall be held by the Trustee, in trust for the benefit of, and
shall be paid forthwith over and delivered to, the holders of such Senior
Indebtedness (pro rata as to each of such holders on the basis of the
respective amounts of Senior Indebtedness held by them) or their
representative or the trustee under the indenture or other agreement (if
any) pursuant to which such Senior Indebtedness may have been issued, as
their respective interests may appear, for application to the payment of
all such Senior Indebtedness remaining unpaid to the extent necessary to
pay the same in full in accordance with its terms, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness. The Issuer shall give prompt written notice to the Trustee
of any default in the payment of principal of or interest on any Senior
Indebtedness.
Section 12.3 SUBORDINATED SECURITIES SUBORDINATED TO PRIOR PAYMENT
OF ALL SENIOR INDEBTEDNESS ON DISSOLUTION, LIQUIDATION OR REORGANIZATION
OF ISSUER. Upon any distribution of assets of the Issuer in any
dissolution, winding up, liquidation or reorganization of the Issuer
(whether voluntary or involuntary, in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of
creditors or otherwise):
(a) the holders of all Senior Indebtedness shall first be
entitled to receive payments in full of the principal thereof and premium,
if any, and interest due thereon, or provision shall be made for such
payment, before the Holders of Subordinated Securities are entitled to
receive any payment on account of the principal of or interest on such
Securities;
(b) any payment or distribution of assets of the Issuer of any
kind or character, whether in cash, property or securities (other than
securities of the Issuer as reorganized or readjusted or securities of the
Issuer or any other corporation provided for by a plan or reorganization
or readjustment the payment of which is subordinate, at least to the
extent provided in this Article Twelve with respect to Subordinated
Securities, to the payment in full without diminution or modification by
such plan of all Senior Indebtedness), to which the Holders of
Subordinated Securities or the Trustee on behalf of the Holders of
Subordinated Securities would be entitled except for the provisions of
this Article Twelve shall be paid or delivered by the liquidating trustee
or agent or other person making such payment or distribution directly to
the holders of Senior Indebtedness or their representative, or to the
trustee under any indenture under which Senior Indebtedness may have been
issued (pro rata as to each such holder, representative or trustee on the
basis of the respective amounts of unpaid Senior Indebtedness held or
represented by each), to the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution or provision thereof to the holders of
such Senior Indebtedness; and
(c) in the event that notwithstanding the foregoing provisions
of this Section 12.3, any payment or distribution of assets of the Issuer
of any kind or character, whether in cash, property or securities (other
than securities of the Issuer as reorganized or readjusted or securities
of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in this Article Twelve with respect to
Subordinated Securities, to the payment in full without diminution or
modification by such plan of all Senior Indebtedness), shall be received
by the Trustee or the Holders of the Subordinated Securities on account of
principal of or interest on the Subordinated Securities before all Senior
Indebtedness is paid in full, or effective provision made for its payment,
such payment or distribution (subject to the provisions of Section 12.6
and 12.7) shall be received and held in trust for and shall be paid over
to the holders of the Senior Indebtedness remaining unpaid or unprovided
for or their representative, or to the trustee under any indenture under
which such Senior Indebtedness may have been issued (pro rata as provided
in subsection (b) above), for application to the payment of such Senior
Indebtedness until all such Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent payment or distribution or
provision therefor to the holders of such Senior Indebtedness.
The Issuer shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Issuer.
The consolidation of the Issuer with, or the merger of the Issuer
into, another corporation or the liquidation or dissolution of the Issuer
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Nine hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 12.3 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated such in Article Nine.
Section 12.4 HOLDERS OF SUBORDINATED SECURITIES TO BE SUBROGATED
TO RIGHT OF HOLDERS OF SENIOR INDEBTEDNESS. Subject to the payment in
full of all Senior Indebtedness, the Holders of Subordinated Securities
shall be subrogated equally and ratably to the rights of the holders of
Senior Indebtedness to receive payments or distributions of assets of the
Issuer applicable to the Senior Indebtedness until all amounts owing on
Subordinated Securities shall be paid in full, and for the purposes of
such subrogation no payments or distributions to the holders of the Senior
Indebtedness by or on behalf of the Issuer or by or on behalf of the
Holders of Subordinated Securities by virtue of this Article Twelve which
otherwise would have been made to the Holders of Subordinated Securities
shall, as between the Issuer, its creditors other than holders of Senior
Indebtedness and the Holders of Subordinated Securities, be deemed to be
payment by the Issuer 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 Subordinated Securities, on the one hand, and the holders
of the Senior Indebtedness, on the other hand.
Section 12.5 OBLIGATION OF THE ISSUER UNCONDITIONAL. Nothing
contained in this Article Twelve or elsewhere in this Indenture or in any
Subordinated Security is intended to or shall impair, as among the Issuer,
its creditors other than holders of Senior Indebtedness and the Holders of
Subordinated Securities, the obligation of the Issuer, which is absolute
and unconditional, to pay to the Holders of Subordinated Securities the
principal of and interest on Subordinated Securities as and when the same
shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders of
Subordinated Securities and creditors of the Issuer other than the holders
of the Senior Indebtedness, nor shall anything herein or therein prevent
the Trustee or the Holder of any Subordinated Security from exercising all
remedies otherwise permitted by applicable law upon 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 Issuer received upon the exercise of any such remedy. Upon any
payment or distribution of assets of the Issuer referred to in this
Article Twelve, the Trustee and Holders of Subordinated Securities shall
be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up, liquidation
or reorganization proceedings are pending, or, subject to the provisions
of Section 6.1 and 6.2, a certificate of the receiver, trustee in
bankruptcy, liquidating trustee or agent or other Person making such
payment or distribution to the Trustee or the Holders of Subordinated
Securities, for the purposes of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Indebtedness
and other indebtedness of the Issuer, the amount thereof or payable
thereon, the amount or amounts paid or distributed therein and all other
facts pertinent thereto or to this Article Twelve.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in any Subordinated Security is intended to or shall affect
the obligation of the Issuer to make, or prevent the Issuer from making,
at any time except during the pendency of any dissolution, winding up,
liquidation or reorganization proceeding, and, except as provided in
subsections (a) and (b) of Section 12.2, payments at any time of the
principal of or interest on Subordinated Securities.
Section 12.6 TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN
ABSENCE OF NOTICE. The Issuer shall give prompt written notice to the
Trustee of any fact known to the Issuer which would prohibit the making of
any payment or distribution to or by the Trustee in respect of the
Subordinated Securities. Notwithstanding the provisions of this Article
Twelve or any provision of this Indenture, the Trustee shall not at any
time be charged with knowledge of the existence of any facts which would
prohibit the making of any payment or distribution to or by the Trustee,
unless at least two Business Days prior to the making of any such payment,
the Trustee shall have received written notice thereof from the Issuer or
from one or more holders of Senior Indebtedness or from any representative
thereof or from any trustee therefor, together with proof satisfactory to
the Trustee of such holding of Senior Indebtedness or of the authority of
such representative or trustee; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Sections 6.1 and
6.2, shall be entitled to assume conclusively that no such facts exist.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior
Indebtedness (or a representative or trustee on behalf of the holder) to
establish that such notice has been given by a holder of Senior
Indebtedness (or a representative of or trustee on behalf of any such
holder). 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 payments or
distribution pursuant of 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, as to the
extent to which such Person is entitled to participate in such payment or
distribution, and as to 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. The
Trustee, however, shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and nothing in this Article Twelve shall
apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.6.
Section 12.7 APPLICATION BY TRUSTEE OF MONIES OR GOVERNMENT
OBLIGATIONS DEPOSITED WITH IT. Money or Government obligations deposited
in trust with the Trustee pursuant to and in accordance with Section 10.1
shall be for the sole benefit of Securityholders and, to the extent
allocated for the payment of Subordinated Securities, shall not be subject
to the subordination provisions of this Article Twelve, if the same are
deposited in trust prior to the happening of any event specified in
Section 12.2. Otherwise, any deposit of monies or Government Obligations
by the Issuer with the Trustee or any paying agent (whether or not in
trust) for the payment of the principal of or interest on any Subordinated
Securities shall be subject to the provisions of Section 12.1, 12.2 and
12.3 except that, if prior to the date on which by the terms of this
Indenture any such monies may become payable for any purposes (including,
without limitation, the payment of the principal of or the interest, if
any, on any Subordinated Security) the Trustee shall not have received
with respect to such monies the notice provided for in Section 12.6, then
the Trustee or the paying agent shall have full power and authority to
receive such monies and Government Obligations and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such date.
This Section 12.7 shall be construed solely for the benefit of the Trustee
and paying agent and, as to the first sentence hereof, the
Securityholders, and shall not otherwise effect the rights of holders of
Senior Indebtedness.
Section 12.8 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF ISSUER OR HOLDERS OF SENIOR INDEBTEDNESS. No rights of any
present or future holders of any Senior Indebtedness to enforce
subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Issuer or by any act or failure to act, in good faith, by any such holders
or by any noncompliance by the Issuer with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Issuer may, at any
time and from time to time, without the consent of or notice to the
Trustee or the Holders of the Subordinated Securities, without incurring
responsibility to the Holders of the Subordinated Securities and without
impairing or releasing the subordination provided in this Article Twelve
or the obligations hereunder of the Holders of the Subordinated Securities
to the holders of such Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, such Senior Indebtedness, or
otherwise amend or supplement in any manner such Senior Indebtedness or
any instrument evidencing the same or any agreement under which such
Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
such Senior Indebtedness; (iii) release any Person liable in any manner
for the collection for such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Issuer, as the case may be,
and any other Person.
Section 12.9 SECURITYHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES. Each Holder of Subordinated Securities by
his acceptance thereof authorizes and expressly directs the Trustee on his
behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article Twelve and appoints
the Trustee his attorney-in-fact for such purpose, including in the event
of any dissolution, winding up, liquidation or reorganization of the
Issuer (whether in bankruptcy, insolvency or receivership proceedings or
upon an assignment for the benefit of creditors or otherwise) the
immediate filing of a claim for the unpaid balance of his Subordinated
Securities in the form required in said proceedings and causing said claim
to be approved. If the Trustee does not file a proper claim or proof of
debt in the form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims, then the holders of
Senior Indebtedness have the right to file and are hereby authorized to
file an appropriate claim for and on behalf of the Holders of said
Securities.
Section 12.10 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 to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive
the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Issuer,
the Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article Twelve, and
no implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders
of such Senior Indebtedness and, subject to the provisions of Section 12.2
and 12.3, the Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall pay over or deliver to Holders of Subordinated
Securities, the Issuer or any other Person money or assets to which any
holder of such Senior Indebtedness shall be entitled by virtue of this
Article Twelve or otherwise.
Section 12.11 ARTICLE TWELVE NOT TO PREVENT EVENTS OF DEFAULTS.
The failure to make a payment on account of principal or interest by
reason of any provision in this Article Twelve shall not be construed as
preventing the occurrence of an Event of Default under Section 5.1.
ARTICLE THIRTEEN
CONVERSION
Section 13.1 APPLICABILITY OF ARTICLE. Securities of any series
which are convertible into Common Stock at the option of the Holder shall
be convertible in accordance with their terms and (except as otherwise
specified as contemplated by Section 2.3 for Securities of the series) in
accordance with this Article. Each reference in this Article to "a
Security" or "the Securities" refers to the Securities of the particular
series that is convertible into Common Stock. If more than one series of
Securities with conversion privileges are outstanding at any time, the
provisions of this Article shall be applied separately to each such
series.
Section 13.2 CONVERSION PRIVILEGE. A Holder of a Security of any
authorized denomination of any series may convert such Security at the
principal amount thereof, or of such portion thereof, into fully paid and
non-assessable shares of Common Stock, at any time during the period
specified on the Securities of that series, at the conversion price or
conversion rate in effect on the conversion date, except that, with
respect to any Security (or portion thereof) called for redemption, such
conversion right shall (except as otherwise provided in Section 11.6)
terminate at the close of business on the fifteenth day prior to the date
fixed for redemption of such Security (or portion thereof) (or such other
day as may be specified as contemplated by Section 2.3 for Securities of
such series), unless the Issuer shall default in payment of the amount due
upon redemption thereof.
The initial conversion price or conversion rate in respect of a
series of Securities shall be as specified on the Securities of that
series. The conversion price or conversion rate will be subject to
adjustment on the terms set forth in Section 13.7 through 13.13 or such
other or different terms, if any, as may be specified as contemplated by
Section 2.3 for Securities of such series.
A Holder may convert any Security in full and may convert a portion
of a Security if the portion to be converted and the remaining portion of
such Security are in denominations issuable for that series of Securities.
Provisions of this Indenture that apply to conversion of all of a Security
also apply to conversion of a portion of it.
Section 13.3 CONVERSION PROCEDURE. To convert a Security of any
series, a Holder must surrender such Security, duly endorsed or assigned
to the Issuer or in blank, at any office or agency of the Issuer
maintained for that purpose, accompanied by written notice to the Issuer
at such office or agency that the Holder elects to convert such Security
or, if less than the entire principal amount thereof is to be converted,
the portion thereof to be converted. The date on which the Holder
satisfies all those requirements is the conversion date. As soon as
practicable after the conversion date, the Issuer shall deliver to the
Holder through the Conversion Agent a certificate for the number of shares
of Common Stock issuable upon the conversion and cash or its check in lieu
of any fractional share. The Person in whose name the certificate is
registered becomes a stockholder of record on the conversion date and the
rights of the Holder of the Securities so converted as a Holder thereof
cease as of such date.
If the Holder converts more than one Security of any series at the
same time, the number of full shares issuable upon the conversion shall be
based on the total principal amount of the Securities of such series so
converted.
Upon surrender of a Security of any series that is converted in
part, the Trustee shall authenticate for the Holder a new Security of that
series equal in principal amount to the unconverted portion of the
Security surrendered.
If the last day on which a Security may be converted is not a
Business Day in a place where a Conversion Agent is located, the Security
may be surrendered to that Conversion Agent on the next succeeding day
that is a Business Day.
The Issuer will not be required to deliver certificates for shares
of Common Stock upon conversion while its stock transfer books are closed
for a meeting of stockholders or for the payment of dividends or for any
other purpose, but certificates for shares of Common Stock shall be
delivered as soon as the stock transfer books shall again be opened.
Securities of any series surrendered for conversion during the
period from the close of business on any Record Date next preceding any
Interest Payment Date for such series to the opening of business on such
Interest Payment Date shall (except in the case of Securities or portions
thereof which have been called for redemption on a redemption date within
such period) be accompanied by payment in funds acceptable to the Issuer
of an amount equal to the interest payable on such Interest Payment Date
on the principal amount of Securities being surrendered for conversion;
provided, that no such payment need be made if there shall exist, at the
time of conversion, a default in the payment of interest on the Securities
of such series. The funds so delivered to the Conversion Agent shall be
paid to the Issuer on or after such Interest Payment Date unless the
Issuer shall default on the payment of the interest due on such Interest
Payment Date, in which event such funds shall be paid to the Holder who
delivered the same. Except as provided in the preceding sentence and
subject to the last paragraph of Section 2.7, no payment or adjustment
shall be made upon any conversion on account of any interest accrued on
the Securities surrendered for conversion or on account of any dividends
on the Common Stock issued upon conversion.
Section 13.4 FRACTIONAL SHARES. The Issuer will not issue a
fractional share of Common Stock upon conversion of a Security. Instead,
the Issuer will deliver cash or its check for the current market value of
a fractional share. The current market value of a fractional share is
determined as follows: Multiply the current market price of a full share
of Common Stock on the last full trading day prior to the conversion date
by the fraction (rounded to the nearest 1/100 of a share) and round the
result to the nearest whole cent.
Section 13.5 TAXES ON CONVERSION. The Issuer shall pay any and
all documentary, stamp or similar issue or transfer taxes due on the issue
or delivery of shares of Common Stock upon the conversion of Securities
pursuant hereto. The Holder, however, shall pay any such tax which is due
because the shares of Common Stock are issued in a name other than his.
Section 13.6 ISSUER TO PROVIDE STOCK. The Issuer shall from time
to time as may be necessary reserve and keep available out of its
authorized but unissued Common Stock or its Common Stock held in treasury
enough shares of Common Stock to permit the conversion of all outstanding
Securities.
All shares of Common Stock which may be issued or delivered upon
conversion of the Securities shall be validly issued, fully paid and non-
assessable and shall be free from any preemptive rights.
In order that the Issuer may issue shares of Common Stock upon
conversion of the Securities, the Issuer will endeavor to comply with all
applicable Federal and State securities laws and will endeavor to list
such shares on each national or regional securities exchange on which the
Common Stock is listed.
If the taking of any action would cause an adjustment to the then
prevailing conversion price or conversion rate which would result in
shares of Common Stock being issued upon conversion of the Securities at
an effective conversion price below the then par value, if any, of the
Common Stock, or would raise the par value above the effective conversion
price then in effect, the Issuer will take such corporate action as may,
in the opinion of its counsel, be necessary in order that the Issuer may
validly and legally issue fully paid and non-assessable shares of its
Common Stock at such adjusted conversion price or conversion rate or the
conversion price or conversion rate then in effect, as the case may be.
Section 13.7 ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If the
Issuer:
(1) pays a dividend or makes a distribution in shares of its
Common Stock;
(2) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(3) combines its outstanding shares of Common Stock into a
smaller number of shares;
(4) pays a dividend or makes a distribution on its Common
Stock other than in shares of its Common Stock; or
(5) issues by reclassification of its shares of Common Stock
any shares of its capital stock,
then the conversion privilege and the conversion price or conversion rate
in effect immediately prior to the opening of business on the record date
for such dividend or distribution or the effective date of such
subdivision, combination or reclassification shall be adjusted so that the
Holder of any Security thereafter converted may receive the number of
shares of capital stock of the Issuer which such Holder would have owned
immediately following such action if such Holder had converted the
Security immediately prior to such time. Such adjustment shall be made
successively whenever any event listed below shall occur.
For a dividend or distribution, the adjustment shall become
effective immediately after the record date for the dividend or
distribution. For a subdivision, combination or reclassification, the
adjustment shall become effective immediately after the effective date of
the subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of it
may receive shares of two or more classes of capital stock of the Issuer,
the conversion prices of the classes of capital stock (after giving effect
to such allocation of the adjusted conversion price between or among the
classes of capital stock as the Board of Directors shall determine to be
appropriate) or the conversion rate, as the case may be, shall thereafter
be subject to adjustment on terms comparable to those applicable to Common
Stock in this Indenture.
Any shares of Common Stock issuable in payment of a dividend shall
be deemed to have been issued immediately prior to the time of the record
date for such dividend for purposes of calculating the number of
outstanding shares of Common Stock under Sections 13.8 and 13.9.
Section 13.8 ADJUSTMENT FOR RIGHTS ISSUE. If the Issuer issues
any rights or warrants to all holders of shares of its Common Stock
entitling them for a period expiring within 45 days after the record date
mentioned below to purchase shares of Common Stock (or Convertible
Securities) at a price per share (or having a conversion price per share,
after adding thereto an allocable portion of the exercise price of the
right or warrant to purchase such Convertible Securities, computed on the
basis of the maximum number of shares of Common Stock issuable upon
conversion of such Convertible Securities) less than the Average Market
Price on the Determination Date, the conversion price or rate shall be
adjusted so that it shall equal the price or rate determined by
multiplying the conversion price or dividing the conversion rate, as the
case may be, in effect immediately prior to the opening of business on
that record date by a fraction, of which the numerator shall be the number
of shares of Common Stock outstanding on such record date plus the number
of shares of Common Stock which the aggregate offering price of the total
number of shares of Common Stock so offered (or the aggregate conversion
price of the Convertible Securities to be so offered, after adding thereto
the aggregate exercise price of the rights or warrants to purchase such
Convertible Securities) would purchase at such Average Market Price and of
which the denominator shall be the number of shares of Common Stock
outstanding on such record date plus the number of additional shares of
Common Stock offered for subscription or purchase (or into which the
Convertible Securities so offered are convertible). Shares of Common
stock owned by or held for the account of the Issuer shall not be deemed
outstanding for the purpose of any such adjustment.
For purposes of this Section 13.8, the number of shares of Common
Stock outstanding on any record date shall be deemed to include the
maximum number of shares of Common Stock the issuance of which would be
necessary to effect the full exercise, exchange or conversion of all
Convertible Securities outstanding on such record date which are then
exercisable, exchangeable or convertible at a price equal to or less than
the Average Market Price per share of Common Stock, if all of such
Convertible Securities were deemed to have been exercised, exchanged or
converted immediately prior to the opening of business on such record
date.
The adjustment shall be made successively whenever any such rights
or warrants are issued, and shall become effective immediately after the
record date or the determination of stockholders entitled to receive the
rights or warrants. If all of the shares of Common Stock (or all of the
Convertible Securities) subject to such rights or warrants have not been
issued when such rights or warrants expire (or, in the case of rights or
warrants to purchase Convertible Securities which have been exercised, all
of the shares of Common Stock issuable upon conversion of such Convertible
Securities have not been issued prior to the expiration of the conversion
right thereof), then the conversion price or conversion rate shall
promptly be readjusted to the conversion price or conversion rate which
would then be in effect had the adjustment upon the issuance of such
rights or warrants been made on the basis of the actual number of shares
of Common Stock (or Convertible Securities) issued upon the exercise of
such rights or warrants (or the conversion of such Convertible
Securities).
No adjustment shall be made under this Section 13.8 if the adjusted
conversion price would be higher than, or the adjusted conversion rate
would be less than, the conversion price or conversion rate, as the case
may be, in effect prior to such adjustment.
Section 13.9 ADJUSTMENTS FOR OTHER DISTRIBUTIONS. If the Issuer
distributes to all holders of shares of its Common Stock any assets or
debt securities or any rights or warrants to purchase securities, the
conversion price or conversion rate shall be adjusted by multiplying the
conversion price or dividing the conversion rate, as the case may be, in
effect immediately prior to the opening of business on the record date
mentioned below by a fraction, of which the numerator shall be the total
number of shares of Common Stock outstanding on such record date
multiplied by the Average Market Price on the Determination Date, less the
fair market value (as determined by the Board of Directors) on such record
date of said assets or debt securities or rights or warrants so
distributed, and of which the denominator shall be the total number of
shares of Common Stock outstanding on such record date multiplied by such
Average Market Price.
For purposes of this Section 13.9, the number of shares of Common
Stock outstanding on any record date shall be deemed to include the
maximum number of shares of Common Stock the issuance of which would be
necessary to effect the full exercise, exchange or conversion of all
Convertible Securities outstanding on such record date which are then
exercisable, exchangeable or convertible at a price equal to or less than
the Average Market Price, if all of such Convertible Securities were
deemed to have been exercised, exchanged or converted immediately prior to
the opening of business on such record date.
The adjustment shall be made successively whenever any such
distribution is made, and shall become effective immediately after the
record date for the determination of stockholders entitled to receive the
distribution. Shares of Common Stock owned by or held for the account of
the Issuer shall not be deemed outstanding for the purpose of any such
adjustment.
No adjustment shall be made under this Section 13.9 if the adjusted
conversion price would be higher than, or the adjusted conversion rate
would be less than, the conversion price or conversion rate, as the case
may be, in effect prior to such adjustment.
This Section does not apply to cash dividends or distributions.
Also, this Section does not apply to dividends or distributions referred
to in Section 13.7 or to rights or warrants referred to in Section 13.8.
Section 13.10 VOLUNTARY ADJUSTMENT. The Issuer at any time may
reduce the conversion price or increase the conversion rate, temporarily
or otherwise, by any amount but in no event shall such adjusted conversion
price or conversion rate result in shares of Common Stock being issuable
upon conversion of the Securities if converted at the time of such
adjustment at an effective conversion price per share less than the par
value of the Common Stock at the time such adjustment is made.
A voluntary adjustment of the conversion price or conversion rate
pursuant to this Section 13.10 does not change or adjust the conversion
price or conversion rate otherwise in effect for purposes of Section 13.7,
13.8 or 13.9. If an event requiring an adjustment to the conversion price
or conversion rate pursuant to Section 13.7, 13.8 or 13.9 occurs at any
time that a voluntary adjustment to the conversion price or conversion
rate is in effect pursuant to this Section 13.10, then the adjustment
required by the applicable of Section 13.7, 13.8 or 13.9 shall be made to
the conversion price or conversion rate that would otherwise have been in
effect as of the relevant date specified in such Section had no voluntary
adjustment pursuant to this Section 13.10 been made, and for purposes of
applying such Section, any such voluntary adjustment shall be disregarded.
If such adjustment would result in a lower conversion price or a higher
conversion rate, as the case may be, than the conversion price or
conversion rate as voluntarily adjusted by the Issuer then such lower
conversion price or higher conversion rate shall be the conversion price
or conversion rate, as the case may be.
Section 13.11 CERTAIN DEFINITIONS. For the purposes of this
Article, the following terms have the following meanings:
"Average Market Price" of a share of Common Stock on the
Determination Date for any issuance of rights or warrants or any
distribution in respect of which the Average Market Price is being
calculated means the average of the daily current market prices of the
Common Stock for the shortest of:
(i) the period of 30 consecutive trading days commencing
45 trading days before such Determination Date,
(ii) the period commencing on the date next succeeding
the first public announcement of the issuance of rights or warrants or the
distribution in respect of which the Average Market Price is being
calculated and ending on the last full trading day before such
Determination Date, and
(iii) the period, if any, commencing on the date next
succeeding the Ex-Dividend Date with respect to the next preceding
issuance of rights or warrants or distribution for which an adjustment is
required by the provisions of Sections 13.7(4), 13.8 or 13.9, and ending
on the last full trading day before such Determination Date.
If the record date for an issuance of rights or warrants or a
distribution for which an adjustment is required by the provisions of
Sections 13.7(4), 13.8 or 13.9 (the "preceding adjustment event"),
precedes the record date for the issuance or distribution in respect of
which the Average Market Price is being calculated and the Ex-Dividend
Date for such preceding adjustment event is on or after the Determination
Date for the issuance or distribution in respect of which the Average
Market Price is being calculated, then the Average Market Price shall be
adjusted by deducting therefrom the fair market value (on the record date
for the issuance or distribution in respect of which the Average Market
Price is being calculated), as determined by the Board of Directors, of
the capital stock, rights, warrants, assets or debt securities issued or
distributed in respect of each share of Common Stock in such preceding
adjustment event.
Further, in the event that the Ex-Dividend Date (or in the case of
a subdivision, combination or reclassification, the effective date with
respect thereto) with respect to a dividend, subdivision, combination
or reclassification to which Section 13.7(1), (2), (3) or (5) applied
occurs during the period applicable for calculating the Average Market
Price, then the Average Market Price shall be calculated for such
period in a manner determined by the Board of Directors to reflect the
impact of such dividend, subdivision, combination or reclassification
on the current market price of the Common Stock during such period.
"current market price" of a share of Common Stock on any day
means the last reported sale price (or, if no sale price is reported, the
average of the high and low bid prices) on such day on the National
Association of Securities Dealers, Inc. Automated Quotation System or as
quoted by the National Quotation Bureau Incorporated, or if the Common
Stock is listed on an exchange, on the principal exchange on which the
Common Stock is listed. In the event that no such quotation is available
for any day, the Board of Directors shall be entitled to determine the
current market price on the basis of such quotations as it considers
appropriate.
"Determination Date" for any issuance of rights or warrants or
any distribution to which Section 13.8 or 13.9 applies means the earlier
of (i) the record date for the determination of stockholders entitled to
receive the rights or warrants or the distribution to which such Section
applies and (ii) the Ex-Dividend Date of such rights, warrants or
distribution.
"Ex-Dividend Date" means the date on which "ex-dividend"
trading commences for a dividend, an issuance of rights or warrants or a
distribution to which any of Sections 13.7, 13.8 and 13.9 applies in the
over-the-counter market or on the principal exchange on which the Common
Stock is then quoted or listed.
Section 13.12 WHEN ADJUSTMENT MAY BE DEFERRED. In any case in
which this Article shall require that an adjustment shall become effective
immediately after a record date for an event, the Issuer may defer until
the occurrence of such event (i) issuing to the Holder of any Security
converted after such record date and before the occurrence of such event
the additional shares of Common Stock issuable upon such conversion by
reason of the adjustment required by such event over and above the shares
of Common Stock issuable upon such conversion before giving effect to such
adjustment and (ii) paying to such Holder cash or its check in lieu of any
fractional interest to which he is entitled pursuant to Section 13.4;
provided, however, that the Issuer shall deliver to such Holder a due bill
or other appropriate instrument evidencing such Holder's rights to receive
such additional shares of Common Stock, and such cash, upon the occurrence
of the event requiring such adjustment.
Section 13.13 WHEN ADJUSTMENT IS NOT REQUIRED. No adjustments in
the conversion price or conversion rate need be made unless the adjustment
would require an increase or decrease of at least one percent (1%) in the
initial conversion price or conversion rate. Any adjustment which is not
made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Article shall be made to the nearest
cent or to the nearest 1/100th of a share, as the case may be.
No adjustment in the conversion price or conversion rate shall be
made because the Issuer issues, in exchange for cash, property or
services, shares of Common Stock, or any securities convertible into or
exchangeable for shares of Common Stock, or securities carrying the right
to purchase shares of Common Stock or such convertible or exchangeable
securities.
No adjustment in the conversion price or conversion rate need be
made under this Article for sales of shares of Common Stock pursuant to an
Issuer plan providing for reinvestment of dividends or interest or in the
event the par value of the Common Stock is changed.
No adjustment in the conversion price or conversion rate need be
made for a transaction referred to in Section 13.7, 13.8 or 13.9 if
Securityholders are to participate in the transaction on a basis and with
notice that the Board of Directors determines to be fair and appropriate
in light of the basis and notice on which holders of Common Stock
participate in the transaction; provided that the basis on which the
Securityholders are to participate in the transaction shall not be deemed
to be fair if it would require the conversion of Securities at any time
prior to the expiration of the conversion period specified for such
Securities.
To the extent the Securities become convertible into cash, no
adjustment need be made thereafter as to such cash. Interest will not
accrue on such cash.
Section 13.14 NOTICE OF ADJUSTMENT. Whenever the conversion price
or conversion rate is adjusted, the Issuer shall promptly mail to
Securityholders a notice of the adjustment and file with the Trustee an
Officers' Certificate briefly stating the new conversion price or
conversion rate, the date it becomes effective, the facts requiring the
adjustment and the manner of computing it. The certificate shall be
conclusive evidence that the adjustment is correct.
Section 13.15 NOTICE OF CERTAIN TRANSACTIONS. If:
(1) the Issuer takes any action which would require an
adjustment in the conversion price or conversion rate;
(2) the Issuer consolidates or merges with, or transfers all
or substantially all of its assets to, another corporation, and
stockholders of the Issuer must approve the transaction; or
(3) there is a voluntary or involuntary dissolution or
liquidation of the Issuer,
a Holder of a Security may elect to convert it into shares
of Common Stock prior to the record date for, or the effective date of,
the transaction so that he may receive the rights, warrants, securities or
assets which a holder of shares of Common Stock on that date may receive.
Therefore, the Issuer shall mail to the Securityholders and the Trustee,
at least 20 days prior to the applicable record or effective date
hereinafter mentioned, a notice stating the proposed record or effective
date, as the case may be. Failure to mail the notice or any defect in it
shall not affect the validity of any transaction referred to in clause
(1), (2) or (3) of this Section.
Section 13.16 CONSOLIDATION, MERGER OR SALE OF THE ISSUER. If the
Issuer is a party to a transaction described in Section 9.1 or a merger
which reclassifies or changes its Outstanding Common Stock, the successor
corporation (or corporation controlling the successor corporation or the
issuer, as the case may be) shall enter into a supplemental indenture
which shall provide that the Holder of a Security may convert it into the
kind and amount of securities or cash or other assets which he would have
owned immediately after the consolidation, merger or transfer if he had
converted the Security immediately before the effective date of such
transaction, assuming (to the extent applicable) that such Holder failed
to exercise any rights of election with respect thereto and received per
share of Common Stock the kind and amount of securities, cash or assets
received per share by a plurality of the non-electing shares. The
supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in
this Article. The successor corporation shall mail to each Securityholder
a notice describing the supplemental indenture.
If this Section applies, Sections 13.7, 13.8 and 13.9 shall not
apply.
Section 13.17 ISSUER DETERMINATION FINAL. Any determination which
the Board of Directors must make pursuant to Sections 13.7, 13.9, 13.11,
13.13 or 13.16 is conclusive and binding on the Holders of Securities.
Section 13.18 TRUSTEE'S DISCLAIMER. Neither the Trustee nor any
Conversion Agent has any duty to determine when an adjustment under this
Article should be made, how it should be made or what it should be.
Neither the Trustee nor any Conversion Agent has any duty to determine
whether any provisions of a supplemental indenture under Section 13.16 are
correct. Neither the Trustee nor any Conversion Agent makes any
representation as to the validity or value of any securities or assets
issued upon conversion of Securities. Neither the Trustee nor any
Conversion Agent shall be responsible for the Issuer's failure to comply
with this Article.
Section 13.19 SIMULTANEOUS ADJUSTMENTS. In the event that this
Article Thirteen requires adjustments to the conversion price or
conversion rate under more than one of Sections 13.7(4), 13.8 or 13.9, and
the record dates for the distributions giving rise to such adjustments
shall occur on the same date, then such adjustments shall be made by
applying, first, the provisions of Section 13.7, second, the provisions of
Section 13.9 and, third, the provisions of Section 13.8.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or in any
Security or Coupon, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such, or against any past,
present or future stockholder, officer or director, as such, of the Issuer
or of any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and
released by the acceptance of the Securities and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for the
issue of the Securities and the Coupons appertaining thereto.
Section 14.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF
PARTIES AND HOLDERS OF SECURITIES AND COUPONS. Nothing in this Indenture,
in the Securities or Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any Person other than the parties
hereto and their successors and the Holders of the Securities or Coupons,
if any, any legal or equitable right, remedy or claim under this Indenture
or under any covenant or provision herein contained, all such covenants
and provisions being for the sole benefit of the parties hereto and their
successors and of the Holders of the Securities or Coupons, if any.
Section 14.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE.
All the covenants, stipulations, promises and agreements in this Indenture
made by or on behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
Section 14.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF
SECURITIES AND COUPONS. Any notice, direction, request or demand which by
any provision of this Indenture is required or permitted to be given or
served by the Trustee or by any Holder of Securities of any series or
Coupons appertaining thereto to or upon the Issuer shall be deemed to have
been sufficiently given or served by being deposited postage prepaid in
the United States mail, first-class mail (except as otherwise specifically
provided herein), addressed (until another address of the Issuer is filed
by the Issuer with the Trustee) to CMS Energy Corporation, Fairlane Plaza
South, Suite 1100, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Atten-
tion: Secretary. Any notice, direction, request or demand by the Issuer
or any Holder of Securities of any series or Coupons appertaining thereto
to or upon the Trustee shall be deemed to have been sufficiently given or
served by being deposited postage prepaid in the United States mail,
first-class mail (except as otherwise specifically provided herein),
addressed (until another address of the Trustee is filed by the Trustee
with the Issuer) to _____________________________________________________.
Any notice required or permitted to be given or served by the Issuer or by
the Trustee to or upon (i) any Holders of Registered Securities of any
series or any Holders of Unregistered Securities who have filed their
names and addresses with the Trustee pursuant to Section 4.4(c)(ii), shall
be deemed to have been sufficiently given or served by being deposited in
the United States mail, first-class mail (except as otherwise specifically
provided herein), addressed at their addresses as they shall appear on the
Security Register or at the addresses so filed, respectively, and (ii) any
Holders of other Unregistered Securities, shall be deemed to have been
sufficiently given or served by publication at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York.
In any case where notice to the Holders of Securities is given by
mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon
such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be
impracticable to mail notice when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be reasonably satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice.
Section 14.5 OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Except as otherwise expressly
provided by this Indenture, upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer 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, if any, have been complied with, except that in the
case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (other than certificates provided
pursuant to Section 4.3(d) or Section 11.5) shall include (a) a statement
that the individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto, (b) a
brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of
such individual, 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 (d) a statement
as to whether or not, in the opinion of such individual, such condition or
covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows
that the certificate or opinion of or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any such certificate, statement or Opinion
of Counsel may be based, insofar as it relates to factual matters, on
information with respect to which is in the possession of the Issuer, upon
the certificate, statement or opinion of or representations by an officer
or officers of the Issuer, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same
are erroneous.
Any certificate, statement or opinion of an officer of the Issuer
or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or
firm of accountants in the employ of the Issuer, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a
statement that such firm is independent.
Section 14.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If
the date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for
redemption or repayment of any such Security or Coupon shall not be a
Business Day, then (notwithstanding any other provision of this Indenture
or of the Securities) payment of such interest or principal need not be
made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the date of maturity or the
date fixed for redemption or repayment, and no interest shall accrue for
the period from and after such date.
Section 14.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT OF 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with any provision set forth in
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, that
impose duties on any person, such provision of the Trust Indenture Act of
1939 shall control.
Section 14.8 MICHIGAN LAW TO GOVERN. This Indenture and each
Security and Coupon shall be governed by and deemed to be a contract
under, and construed in accordance with, the laws of the State of Michigan,
and for all purposes shall be construed in accordance with the laws
of such State, except as may otherwise be required by mandatory provisions
of law, provided, however, that the rights, duties and obligations of the
Trustee are governed and construed in accordance with the laws of the State of
New York.
Section 14.9 COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 14.10 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 14.11 SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of _________ __, 1995.
CMS ENERGY CORPORATION
By: _____________________
Title:
[CORPORATE SEAL]
Attest:
By: _____________________
Title:
__________________________
By: _______________________
Title:
[CORPORATE SEAL]
Attest:
By: ______________________
Title: